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81191Monday, October 3, 2016Rules and RegulationsSMALL BUSINESS ADMINISTRATION13 CFR Part 121RIN 3245-AG20Acquisition Process: Task and Delivery Order Contracts, Bundling, ConsolidationAGENCY:

U.S. Small Business Administration.

ACTION:

Final rule; correction.

SUMMARY:

The U.S. Small Business Administration (SBA) is correcting a final rule that appeared in the Federal Register on October 2, 2013. The rule, which described how supply procurements should be classified, mistakenly attempted to amend a regulation by removing words that did not exist in the particular paragraph. This notice corrects that rule document by removing the instruction.

On June 28, 2013, SBA published a rule in the Federal Register at 78 FR 38811 that amended § 121.404(b) by removing “and the date of certification by SBA” and adding in its place “and, where applicable, the date the SBA program office requests a formal size determination in connection with a concern that otherwise appears eligible for program certification.” The final rule published on October 2, 2013, (78 FR 61113) intended to amend 13 CFR 121.404(b) by removing “date of certification by SBA” and adding in its place “date the Director of the Division of Program Certification and Eligibility or the Associate Administrator for Business Development requests a formal size determination in connection with a concern that is otherwise eligible for program certification.” However, the amendment could not be implemented because at that point the words to be removed did not exist in § 121.404(b). Therefore, SBA is removing that instruction from the final rule published on October 2, 2013.

In the FR Rule Doc. No. 2016-22064 in the issue of October 2, 2013, beginning on page 61113, make the following correction:

On April 6, 2016, the U.S. Small Business Administration (SBA) published in the Federal Register a proposed rule to amend its disaster loan program regulations in response to changes made to the Small Business Act (the Act) by the Recovery Improvements for Small Entities After Disaster Act of 2015 (the RISE Act). SBA received no comments on its proposed rule; therefore SBA adopts the proposed rule without change. The first change expands the definition of a mitigating measure to include the construction of a safe room or similar storm shelter designed to protect property and occupants. The second change allows for an increase of the unsecured threshold for physical damage loans for non-major disasters. The third change allows SBA to increase loan amounts to address contractor malfeasance. In addition, SBA is making several technical corrections to conform certain regulatory provisions to existing statutory authority and remove an obsolete reference in part 123.

Section 7(b) of the Small Business Act, 15 U.S.C. 636(b), authorizes SBA to make direct loans to homeowners, renters, businesses, and non-profit organizations that have been adversely affected by a disaster. After a declared disaster, SBA makes loans of up to $200,000 to homeowners and renters (plus up to $40,000 for personal property) and loans of up to $2 million to businesses of all sizes and non-profit organizations to assist with any uninsured and otherwise uncompensated physical losses sustained during the disaster. In addition to loans for the repair or replacement of damaged physical property, SBA also offers working capital loans, known as Economic Injury Disaster Loans (EIDLs), to small businesses, small agricultural cooperatives, and most private non-profit organizations that have suffered economic injury caused by a disaster. The maximum loan amount is $2 million for physical and economic injuries combined. SBA may waive this $2 million limit if a business is a major source of employment.

The Recovery Improvements for Small Entities After Disaster Act of 2015, Public Law 114-88, 129 Stat. 686 (November 25, 2015), amended certain terms and conditions of SBA's Disaster Assistance program. SBA published a proposed rule in the Federal Register on April 6, 2016 (81 FR 19934), to address three of those statutory amendments, as set out in sections 1102 (safe rooms), 2102 (three year temporary increase in unsecured loan limits), and 2107 (contractor malfeasance) of the RISE Act, as well as to make several minor technical amendments to the program regulations to ensure consistency between the program's regulatory and statutory authorities. The comment period for the proposed rule ended on June 6, 2016, and SBA received no comments. As discussed below, this final rule implements those statutory and technical amendments without change.

II. Changes Made as a Result of the RISE Act

Section 1102 of the RISE Act, Use of Physical Damage Disaster Loans to Construct Safe Rooms, expanded the definition of mitigation to include “construction of a safe room or similar storm shelter designed to protect property and occupants from tornadoes or other natural disasters, if such safe room or similar storm shelter is constructed in accordance with applicable standards issued by the Federal Emergency Management Agency.” This change allows SBA to include a safe room or storm shelter as a mitigating measure; therefore, SBA is amending 13 CFR 123.21 to reflect this change in the definition of a mitigation measure. Increases for mitigation purposes are only available when the mitigation protects or mitigates against damage from the same type of occurrence as the declared disaster. Revised § 123.21 also clarifies that a mitigation measure is something done for the purpose of protecting property (real and personal) and occupants. In addition, safe rooms and storm shelters are now included in the examples of mitigation measures. The final rule adopts the proposed revisions to 13 CFR 123.21 without change.

Section 2102 of the RISE Act, Collateral Requirements for Disaster Loans, increased SBA's unsecured loan limits for all disaster loans for a period of three years. Therefore, SBA proposed to amend 13 CFR 123.11 to reflect a $25,000 unsecured threshold for all disaster declarations. In accordance with the RISE Act, after November 25, 2018, the unsecured limit for physical damage loans for non-major disasters will revert back to $14,000, unless Congress makes the increase permanent. The final rule adopts the proposed revision to 13 CFR 123.11 without change.

Section 2107 of the RISE Act, Contractor Malfeasance, expanded SBA's ability to provide disaster assistance by expressly allowing for supplemental assistance for malfeasance by a contractor or other person and defining what constitutes malfeasance. Prior to implementation of the RISE Act, SBA provided assistance only for malfeasance by contractors, not malfeasance by any “other person” in connection with the loan, and did not allow for increases in the loan amount beyond the regulatory limit of $200,000 for repair or replacement of damaged property. The RISE Act gave SBA authority to increase a disaster loan when a contractor or other person engages in malfeasance in connection with repairs to, rehabilitation of, or replacement of property for which SBA made a disaster loan and the malfeasance results in substantial economic damage or substantial risks to health or safety. SBA proposed to revise 13 CFR 123.18, 123.20, and 123.105 to include details on what constitutes malfeasance, provide guidance on when borrowers are eligible to apply for loan increases due to malfeasance, and allow home loan borrowers to increase their loans up to an additional $200,000 for malfeasance. For business loans, the total maximum loan amount, including any increase for malfeasance, remains $2,000,000. The final rule adopts the proposed revisions to 13 CFR 123.18, 123.20, and 123.105 without change.

The changes made as a result of the RISE Act apply to all eligible recipients of SBA disaster loans for disasters declared on or after the effective date of the RISE Act, November 25, 2015.

III. Technical Corrections

In addition to the changes made as a result of the RISE Act, SBA is also making several technical corrections. In the proposed rule, SBA proposed to change the phrase “sudden physical event” to “sudden event” in 13 CFR 123.2 to conform the regulation to SBA's statutory definition of “disaster” in 15 U.S.C. 632(k). SBA also proposed to revise 13 CFR 123.3 to remove the reference to “emergency” declarations in 123.3(a)(1) in order to conform the regulations to SBA's statutory authority. SBA proposed this change to clarify that SBA disaster assistance is not automatically authorized when the President declares an emergency; such assistance may be available, however, if SBA declares a disaster under its own authority. Finally, SBA proposed to revise 13 CFR 123.13(a) to remove the reference to an expired OMB control number. These proposed technical corrections are all adopted without change in the final rule.

IV. Justification for Immediate Effective Date

The APA requires that “publication or service of a substantive rule shall be made not less than 30 days before its effective date, except as . . . otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of this provision is to provide interested and affected members of the public sufficient time to adjust their behavior before the rule takes effect.

SBA's Disaster Assistance Program offers low interest, fixed rate loans to disaster victims, enabling them to replace property damaged or destroyed in declared disasters. It also offers such loans to affected small businesses and non-profits to help them recover from economic injury caused by such disasters. The changes in this final rule will not require members of the public to adjust their behavior. Rather, the changes will benefit the public by increasing the unsecured threshold for all disaster loans, allowing SBA to provide supplemental assistance for malfeasance by a contractor or other person, and expanding available uses of mitigation funds to include safe rooms and storm shelters.

In light of the urgent need to assist disaster victims, SBA finds that there is good cause for making this rule effective immediately instead of observing the 30-day period between publication and effective date.

The Office of Management and Budget (OMB) has determined that this rule does not constitute a significant regulatory action under Executive Order 12866. This is not a major rule under the Congressional Review Act, 5 U.S.C. 800.

Executive Order 12988

This action meets applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. This action does not have preemptive effect. The final rule will have retroactive effect to the enactment date of the statutory amendments. Sections 1102 (Safe Rooms), 2102 (3 year temporary increase in unsecured loan limits) and 2107 (Contractor Malfeasance) of the RISE Act amended the Small Business Act effective November 25, 2015. The regulatory changes made as a result of the RISE Act will apply to disasters declared on or after November 25, 2015.

Executive Order 13132

For the purposes of Executive Order 13132, this rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, SBA determined that this rule has no federalism implications warranting preparation of a federalism assessment.

Executive Order 13563

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We developed this rule in a manner consistent with these requirements and afforded the public 60 days to participate and provide comments. No comments were received.

Paperwork Reduction Act (44 U.S.C. Ch. 35)

For purpose of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA has determined that this rule will not impose any new reporting or recordkeeping requirements.

Regulatory Flexibility Act (5 U.S.C. 601-612)

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, including small businesses. According to the RFA, when an agency issues a rule, the agency must prepare an analysis to determine whether the impact of the rule will have a significant economic impact on a substantial number of small entities. However, the RFA allows an agency to certify a rule in lieu of preparing an analysis if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

While this rule will affect all future applicants for disaster assistance, some of which would be small entities, it does not impose any requirements on small entities. It streamlines SBA's processes in order to enable the Agency to provide disaster assistance more quickly and efficiently to small entities. SBA is not a small entity. As such, SBA certifies that this rule does not have a significant economic impact on a substantial number of small entities.

(1) The President declares a Major Disaster and authorizes Federal Assistance, including individual assistance (Assistance to Individuals and Households Program).

4. Amend § 123.11 by revising paragraph (a)(2) to read as follows:§ 123.11 Does SBA require collateral for any of its disaster loans?

(a) * * *

(2) Physical disaster home and physical disaster business loans. Generally, SBA will not require that you pledge collateral to secure a physical disaster home or physical disaster business loan of $25,000 or less. This authority expires on November 25, 2018, unless extended by statute.

§ 123.18 Can I request an increase in the amount of a physical disaster loan?

(a) Generally, SBA will consider your request for an increase in your loan if you can show that the eligible cost of repair or replacement of damages increased because of events occurring after the loan approval that were beyond your control. * * *

(b) For all disasters occurring on or after November 25, 2015, you may also request an increase in your loan if you suffered substantial economic damage or substantial risks to health or safety as a result of malfeasance in connection with the repair or replacement of real property or business machinery and equipment for which SBA made a disaster loan. See § 123.105 for limits on home loan amounts and § 123.202 for limits on business loan amounts. Malfeasance may include, but is not limited to, nonperformance of all or any portion of the work for which a contractor was paid, work that does not meet acceptable standards, or use of substandard materials.

7. Amend § 123.20 by redesignating the undesignated text as paragraph (a) and adding paragraph (b) to read as follows:§ 123.20 How long do I have to request an increase in the amount of a physical disaster loan or an economic injury loan?

(a) * * *

(b) For physical disaster loan increases requested under § 123.18(b) as a result of malfeasance, the request must be received not later than two years after the date of final disbursement.

8. Amend § 123.21 by revising the first and third sentences to read as follows:§ 123.21 What is a mitigation measure?

A mitigation measure is something done for the purpose of protecting property and occupants against disaster related damage. * * * Examples of mitigation measures include building retaining walls, sea walls, grading and contouring land, elevating flood prone structures, relocating utilities, constructing a safe room or similar storm shelter (if such safe room or similar storm shelter is constructed in accordance with applicable standards issued by the Federal Emergency Management Agency), or retrofitting structures to protect against high winds, earthquakes, flood, wildfires, or other physical disasters. * * *

§ 123.105 How much can I borrow with a home disaster loan and what limits apply on use of funds and repayment terms?

(a) There are limits on how much money you can borrow for particular purposes:

(4) 20 percent of the verified loss (not including refinancing or malfeasance), before deduction of compensation from other sources, up to a maximum of $200,000 for post-disaster mitigation (see § 123.107); and

We are adopting a new airworthiness directive (AD) for Airbus Helicopters Model SA341G and SA342J. This AD prohibits autorotation training flights until the hardness of the landing gear rear crosstube (crosstube) is inspected. This AD is prompted by two reports of crosstubes failing during ground handling. These actions are intended to prevent failure of a crosstube, which could result in dropping or tipping of the helicopter.

DATES:

This AD becomes effective October 18, 2016.

The Director of the Federal Register approved the incorporation by reference of a certain document listed in this AD as of October 18, 2016.

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9168; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the European Aviation Safety Agency (EASA) AD, any incorporated by reference service information, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

For service information identified in this final rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9168.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

Discussion

On April 13, 2016, EASA, which is the Technical Agent for the Member States of the European Union, issued EASA Emergency AD No. 2016-0073-E (AD 2016-0073-E) to correct an unsafe condition for Airbus Helicopters Model SA341G and SA342J helicopters with a crosstube part number (P/N) 341A415201.00 or P/N 341A415201.01. EASA advises that two reported failures of a crosstube have occurred during maintenance and towing operations, resulting in the helicopters dropping or tipping over. EASA further states that excessive hardness of the crosstube material, combined with inter-granular corrosion initiation, may have affected the structural integrity of the crosstube. EASA advises that this condition could lead to failure of the crosstube and dropping or tipping over of the helicopter. To address this unsafe condition, EASA AD 2016-0073-E requires identifying the affected crosstubes, implementing a temporary prohibition of autorotation training flights on affected helicopters by amending the RFM and installing a placard, inspecting the hardness of each affected crosstube, and replacing any crosstubes that do not meet the hardness criteria.

FAA's Determination

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

Related Service Information Under 1 CFR Part 51

Airbus Helicopters has issued Alert Service Bulletin (ASB) No. SA341/2-32.08, Revision 0, dated March 24, 2016 (ASB 32.08), which specifies removing the crosstube, checking its hardness, and replacing the crosstube if it fails the hardness test. ASB 32.08 also specifies prohibiting autorotation training flights by installing a placard on the instrument panel.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This AD requires, before further flight, prohibiting autorotation training flights by amending the RFM and installing a limitation placard on the instrument panel.

This AD also requires, within 25 hours time-in-service (TIS), applying a solution to the crosstube to determine whether the metal is coated and removing all coating within a specific area. Once there is no coating, this AD requires inspecting the hardness of the crosstube and replacing the crosstube if it does not meet the hardness criteria. After determining the crosstube meets the hardness criteria, the placard and RFM amendment prohibiting autorotation training flights may be removed.

Differences Between This AD and the EASA AD

EASA requires the hardness inspection to be completed within six months, while we require the hardness inspection to be completed within 25 hours TIS.

Costs of Compliance

We estimate that this AD affects 17 helicopters of U.S. Registry.

We estimate that operators may incur the following costs in order to comply with this AD. At an average labor rate of $85 per hour, amending the RFM and installing a placard will require about 0.5 work-hour, for a cost per helicopter of $43, and a total cost of $731 to the U.S. fleet. Inspecting a crosstube will require about 8 work-hours, and the required materials cost is minimal, for a cost per helicopter of $680 and a total cost of $11,560 to the U.S. fleet.

If required, replacing a crosstube will require 8 work-hours, and required parts will cost $11,952, for a total cost of $12,632 per helicopter.

FAA's Justification and Determination of the Effective Date

Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because certain operations must be prohibited before further flight until the required corrective actions are accomplished. Those corrective actions must then be accomplished within 25 hours TIS, a short time interval for these model helicopters.

Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in less than 30 days.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

This AD applies to Airbus Helicopters Model SA 341G and Model SA 342J helicopters with a landing gear rear crosstube (crosstube) part number 341A415201.00 or 341A415201.01, certificated in any category.

(b) Unsafe Condition

This AD defines the unsafe condition as incorrect hardness of the crosstube, which could result in failure of the crosstube and subsequent dropping or tipping of the helicopter.

(c) Effective Date

This AD becomes effective October 18, 2016.

(d) Compliance

You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

(e) Required Actions

(1) Before further flight:

(i) Amend the rotorcraft flight manual (RFM) by inserting a copy of this AD or by making pen-and-ink changes in Section 1, Limitations, by adding the following: AUTOROTATION TRAINING FLIGHTS ARE PROHIBITED.

(ii) Install a placard on the instrument panel in full view of the pilots that states the following: AUTOROTATION TRAINING FLIGHTS ARE PROHIBITED.

(2) Within 25 hours time-in-service:

(i) Inspect the crosstube to determine whether the metal is coated. Make a copper sulfate solution by following the Accomplishment Instructions, paragraph 3.B.2.b.1., of Airbus Helicopters Alert Service Bulletin (ASB) No. SA341/342-32.08, Revision 0, dated March 24, 2016 (ASB 32.08). Apply 2 to 3 drops of the solution to Area Z in Figure 1 of ASB 32.08 and wait 10 to 15 seconds. If a dark mark appears as shown in Area 2 of Figure 3 of ASB 32.08, there is no metal coating. If a light mark appears as shown in Area 4 of Figure 3 of ASB 32.08, remove all metal coating in Area Z of Figure 1 of ASB 32.08.

(ii) Inspect the hardness of the crosstube by using the criteria in the table under Paragraph 3.B.2.c. of ASB 32.08. If the hardness is not within the value range in the table, before further flight, replace the crosstube. If the hardness is within the value range in the table, apply corrosion protectant to Area Z in Figure 1 of ASB 32.08.

(iii) Remove the RFM limitation and the instrument panel placard required by paragraphs (e)(1)(i) and (e)(1)(ii) of this AD.

(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.

(2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) Emergency AD No. 2016-0073-E, dated April 13, 2016. You may view the EASA AD on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2016-9168.

(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.

(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

The Coast Guard is extending the effective period for the temporary safety zone on a portion of Shark River, in Neptune City, NJ. That temporary regulation was set to expire September 30, 2016. Extending the effective period for this safety zone provides continued and uninterrupted protection for the dredge operations and for the safety of life on navigable waters during dredging operations.

DATES:

This rule is effective September 30, 2016. Effective September 30, 2016, the effective period for § 165.T05-0824, added at 81 FR 59484, August 30, 2016, effective from September 1, 2016, through September 30, 2016, is extended through October 31, 2016.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to, type USCG-2016-0824 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

SUPPLEMENTARY INFORMATION:I. Table of AbbreviationsCFR Code of Federal RegulationsDHS Department of Homeland SecurityFR Federal RegisterNPRM Notice of proposed rulemaking§ SectionU.S.C. United States CodeCOTP Captain of the PortII. Background Information and Regulatory History

Efforts to dredge the Shark River have been underway for well over a decade. After Superstorm Sandy the need to dredge the river increased significantly due to sediment deposited by the storm, which impeded navigation within those channels. Funding issues and concerns over dewatering locations (locations to dry the dredged materials) have historically stalled the progress of this project.

Mobile Dredging and Pumping Co. have been awarded the contract to restore the state channels to allow safe passage for recreational and commercial traffic. The project requires dredging approximately 102,000 cubic yards of sediment comprised of sand and silt. The sediment will be hydraulically dredged and piped via a secure welded pipeline to the selected dewatering locations.

The purpose of this rule is to promote maritime safety and protect vessels from the hazards of dredge piping and dredge operations. The rule will temporarily restrict vessel traffic from transiting a portion of the Shark River while dredging operations are being conducted in the main navigational channel.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the final details for this event, specifying the need for the dredging operation to continue from October 1, 2016 through October 31, 2016, were not received by the Coast Guard until September 15, 2016. It is impracticable to publish an NPRM because we must establish this safety zone October 1, 2016. Failing to extend the effective dates for this rule pending completion of notice and comment rulemaking is impracticable and contrary to the public interest because it would cause a gap in the ability to enforce the needed safety zone. The dredge and dredge piping are positioned in the main navigational channel in order for the dredging company to complete the proper dredging of the main navigational channel. Allowing this event to continue without a safety zone in place would expose mariners and the public to unnecessary dangers associated with dredge piping and dredge operations. Therefore, it is imperative that the safety zone restricting traffic in this portion of the Shark River, in Neptune City, NJ remain in place.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register for the reasons stated above. The Coast Guard expects that there will be an impact to vessel traffic during times when the navigational channel is restricted. However, there will be times throughout the project where vessel traffic is not restricted and traffic will be able to freely flow through the main navigational channel. Furthermore, notification of the waterway restrictions will be made by the contractor, Mobile Dredging and Pumping Co. Additionally the New Jersey Department of Transportation, Office of Marine Resources, will be conducting outreach to the local community. Notification of the safety zone and waterway restrictions will be made by the COTP via marine safety broadcast using VHF-FM channel 16 and through the Local Notice to Mariners.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port, Delaware Bay has determined that potential hazards are associated with dredge piping and dredge operations from October 1, 2016, through October 31, 2016. The rule is necessary to promote maritime safety and protect vessels from the hazards of dredge piping and dredge operations.

The rule will have an impact to vessels transiting through the Shark River main navigational channel, from latitude 40°10′53.2579″ N., longitude 074°01′52.6231″ W., bounded by the eastern side of the channel and the western side of the channel, north, to latitude 40°11′21.0139″ N., longitude 074°01′53.1749″ W. as vessels will be unable to transit the main navigational channel during times when dredging operations are being conducted. This restriction is necessary to ensure the safety of life and protect vessel from dredge piping and dredge operations.

IV. Discussion of the Rule

On September 1, 2016, dredging began on a portion of the Shark River in Neptune City, NJ. The Captain of the Port, Delaware Bay, determined that the hazards associated with dredge piping and dredge operations in the main navigational channel created the need for a safety zone to ensure safety of vessels transiting this portion and for workers engaged in dredge piping and dredging operations of the Shark River.

The safety zone closed the main navigational channel on all the navigable waters on the Shark River from latitude 40°10′53.2579″ N., longitude 074°01′52.6231″ W., bounded by the eastern side of the channel and the western side of the channel, north, to latitude 40°11′21.0139″ N., longitude 074°01′53.1749″ W.; during times of dredging. Dredging for the main navigational channel was scheduled from September 1, 2016, through September 30, 2016, from 9 a.m. to 9 p.m. Monday through Thursday. The Coast Guard is extending the effective period for the temporary safety zone through October 31, 2016. Entry into, transiting, or anchoring within this portion of Shark River during these times is prohibited. These coordinates are based on the World Geodetic System 1984 (WGS 84) horizontal datum reference.

The channel will be open from October 1, 2016, through October 31, 2016, each week from 9 p.m. to 9 a.m., Monday through Thursday. Vessels may transit freely during these times, and vessels are requested to contact the dredge via VHF-FM channel 13 or 16 to make satisfactory passing arrangement and maintain a safe speed when transiting the main navigational channel.

V. Regulatory Analyses

We developed this rule after considering numerous statutes and Executive order related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This finding is based on the limited size of the zone and duration of the safety zone. Although the main navigational channel of this portion of the Shark River will be closed for periods of time throughout the dredging operation, there are designated times where the channel will be open for vessel traffic and traffic will be able to flow freely. Vessels will only be affected 84-hours weekly, from 9 a.m. to 9 p.m. Monday through Thursday, during October 2016. The safety zone and channel closure will be well publicized to allow mariners to make alternative plans for transiting the affected area.

B. Impact on Small Entities

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

It is expected that there will be some disruption to the maritime community. Before the effective period, the Coast Guard, Mobile Dredging and Pumping Co., and New Jersey Department of Transportation's Office of Marine Resources will issue maritime advisories, widely available to users of the Shark River, describing times and dates of waterway closures and openings.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

C. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

E. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

F. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing all the waters from latitude 40°10′53.2579″ N., longitude 074°01′52.6231″ W., bounded by the eastern side of the channel and the western side of the channel, north, to latitude 40°11′21.0139″ N., longitude 074°01′53.1749″ W., in the Shark River, in Neptune City, NJ. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

G. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as set forth below and extends the effective period for § 165.T05-0824 from September 30, 2016, through October 31, 2016.

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS1. The authority citation for part 165 continues to read as follows:Authority:

(a) Regulated areas. The following areas are safety zone: All waters from latitude 40°10′53.2579″ N., longitude 074°01′52.6231″ W., bounded by the eastern side of the channel and the western side of the channel, north, to latitude 40°11′21.0139″ N., longitude 074°01′53.1749″ W., in the Shark River, in Neptune City, NJ. These coordinates are based on the World Geodetic System 1984 (WGS 84) horizontal datum reference.

(b) Regulations. The general safety zone regulations in § 165.23 apply to the safety zone created by this temporary section.

(1) All vessels and persons are prohibited from entering into or moving within the safety zone described in paragraph (a) of this section while it is subject to enforcement, unless authorized by the Captain of the Port, Delaware Bay, or by his designated representative.

(2) Persons or vessels seeking to enter or pass through the safety zone must contact the Captain of the Port, Delaware Bay, or his designated representative to seek permission to transit the area. The Captain of the Port, Delaware Bay can be contacted at telephone number 215-271-4807 or on Marine Band Radio VHF Channel 16 (156.8 MHz).

(3) Vessels may freely transit this portion of the Shark River from 9 p.m. to 9 a.m. Monday through Thursday. Vessels are requested to contact the dredge via VHF-FM channel 13 or 16 to make satisfactory passing arrangement and maintain a safe speed when transiting the main navigational channel during times of channel openings.

(5) This section applies to all vessels except those engaged in the following operations: enforcing laws, servicing aids to navigation and emergency response vessels.

Designated representative means any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port Delaware Bay to assist in enforcing the safety zone described in paragraph (a) of this section.

(d) Enforcement. The U.S. Coast Guard may be assisted by Federal, State and local agencies in the patrol and enforcement of the zone.

(e) Enforcement periods. This section will be enforced weekly from 9 a.m. to 9 p.m. Monday through Thursday, through October 31, 2016.

The Coast Guard is establishing a temporary safety zone on the Delaware River in Philadelphia, PA, on October 3, 2016, from 7 a.m. through 11 a.m. During the period of enforcement, the safety zone will restrict vessel traffic on the waters of the Delaware River, adjacent to Penn's Landing, Philadelphia, PA. The safety zone is intended to provide for the safety of personnel involved in diving operations.

DATES:

This rule is effective from 7 a.m. through 11 a.m. on October 3, 2016.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0899 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because a safety zone is needed to ensure safety of life and property for those vessels involved in the diving operations and those persons transiting the Delaware River. In this case, waiting for a comment period to run would be contrary to the public interest of protecting life and property. In addition, publishing an NPRM is impracticable as the requestors did not provide sufficient notice to the Coast Guard relating to the expected date of the diving operations. Therefore, delay in taking action is both impracticable and contrary to public interest.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to respond to the potential safety hazards associated with diving operations.

III. Legal Authority and Need for Rule

The legal basis for the rule is provided by 33 U.S.C. 1231. On October 3, 2016, diving operations will be conducted from the Penn's Landing pier. Due to the proximity of the pier to the navigable channel, and the diving operations, vessel traffic will be restricted from entering the safety zone during the designated date and time, which accounts for staging as well as the actual diving operations. This rule is required in order to safely facilitate diving operations and protect both life and property on the navigable waterways of the Delaware River.

IV. Discussion of the Rule

To mitigate the risks associated with necessary diving operations, the Captain of the Port, Delaware Bay is establishing a temporary safety zone in the vicinity of the diving site. The safety zone will encompass all waters of Delaware River, adjacent to Penn's Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline at latitude 39°56′31.2″ N., longitude 075°08′28.1″ W.; thence to latitude 39°56′29.1″ N., longitude 075°07′56.5″ W., and bounded on the north by the Benjamin Franklin Bridge. The safety zone will be effective and enforced from 7 a.m. through 11 p.m. on Monday, October 3, 2016. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Delaware Bay, or his on-scene representative. The Captain of the Port, Delaware Bay, or his on-scene representative may be contacted via VHF channel 16.

V. Regulatory Analyses

We developed this rule after considering numerous statutes and Executive order related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. This safety zone will impact the waters affected by this rule from 7 a.m. through 11 a.m. on October 3, 2016, during a time of year when vessel traffic is normally low. In addition, notifications will be made to the maritime community via marine information broadcasts so mariners may adjust their plans accordingly. Such notifications will be updated as necessary, to keep the maritime community informed of the status of the safety zone.

B. Impact on Small Entities

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

C. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

E. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

F. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing a temporary safety zone lasting four hours that will prohibit entry into a portion of the Delaware River. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

G. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

(a) Regulated area. The following area is a safety zone: All waters of Delaware River, adjacent to Penn's Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline at latitude 39°56′31.2″ N., longitude 075°08′28.1″ W.; thence to latitude 39°56′29.1″ N., longitude 075°07′56.5″ W., and bounded on the north by the Benjamin Franklin Bridge.

(b) Regulations. The general safety zone regulations found in § 165.23 apply to the safety zone created by this temporary section, § 165.T05-0899.

(1) All vessels and persons are prohibited from entering into or moving within the safety zone described in paragraph (a) of this section while it is subject to enforcement, unless authorized by the Captain of the Port, Delaware Bay, or by his designated representative.

(2) Persons or vessels seeking to enter or pass through the safety zone must contact the Captain of the Port, Delaware Bay, or his designated representative to seek permission to transit the area. The Captain of the Port, Delaware Bay can be contacted at telephone number 215-271-4807 or on Marine Band Radio VHF Channel 16 (156.8 MHz).

(3) The Coast Guard vessels enforcing this safety zone can be contacted on VHF-FM marine band radio channel 16 (156.8 MHZ). Upon being hailed by a U.S. Coast Guard vessel, or other Federal, State, or local agency vessel operating under the authority of the COTP Delaware Bay, by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. The COTP Delaware Bay and his designated representatives can be contacted at telephone number 215-271-4807.

Designated representative means any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port Delaware Bay to assist in enforcing the safety zone described in paragraph (a) of this section.

(d) Enforcement. The U.S. Coast Guard may be assisted by Federal, State and local agencies in the patrol and enforcement of the zone.

(e) Enforcement period. This section will be enforced from 7 a.m. through 11 a.m. on October 3, 2016.

The Coast Guard is establishing a temporary safety zone for the University of Pittsburgh Fireworks show, Pittsburgh, PA. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based fireworks display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Pittsburgh.

DATES:

This rule is effective from 10 p.m. until 11:30 p.m. on October 1, 2016.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0912 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Petty Officer Charles Morris, Marine Safety Unit Pittsburgh, U.S. Coast Guard; at telephone 412-221-0807, email Charles.F.Morris@uscg.mil.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor submitted event application on September 21, 2016. After receiving and fully reviewing the event information, circumstances, and exact location, the Coast Guard determined that delaying this regulation's effective date for comment would be contrary to the public interest since a safety zone is necessary to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based fireworks display on the navigable waterway. It would be impracticable to complete the full NPRM process for this safety zone because it needs to be established by October 1, 2016. The fireworks display has been advertised and the local community has prepared for the event.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying this rule would be contrary to public interest of ensuring the safety of spectators and vessels during the event. Immediate action is necessary to prevent possible loss of life and property during the hazards created by a barge-based fireworks display near and over the navigable waterway.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Pittsburgh (COTP) has determined that a safety zone is needed on October 1, 2016. This rule is needed to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based fireworks display.

IV. Discussion of the Rule

This rule establishes a safety zone from 10 p.m. to 11:30 p.m. on October 1, 2016. The safety zone will cover all navigable waters on the Allegheny River mile 0.0-0.25, Ohio River mile 0.0-0.1, Monongahela River mile 0.0-0.1. The duration of the safety zone is intended to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based firework display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

V. Regulatory Analyses

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone impacts a small portion of the waterway for a limited duration of one hour in the evening. Vessel traffic will be informed about the safety zone through local notices to mariners. Moreover, the Coast Guard will issue broadcast notices to mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to transit the zone.

B. Impact on Small Entities

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

C. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

E. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

F. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting one hour that will prohibit entry to the Allegheny River mile 0.0-0.25, Ohio River mile 0.0-0.1, Monongahela River mile 0.0-0.1 during the barge-based firework event. It is categorically excluded from further review under paragraph 34 (g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

G. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

(a) Location. The following area is a safety zone: Pittsburgh Steelers Fireworks; Allegheny River mile 0.0-0.25, Ohio River mile 0.0-0.1, Monongahela River mile 0.0-0.1, Pittsburgh, PA

(b) Enforcement. This safety zone described in (a) above will be enforced from 10 p.m. until 11:30 p.m. on October 1, 2016.

(c) Regulations. (1) In accordance with the general regulations in § 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port Pittsburgh (COTP) or a designated representative.

(2) Persons or vessels requiring entry into or passage through the zone must request permission from the COTP or a designated representative. The COTP representative may be contacted at 412-221-0807.

(3) All persons and vessels shall comply with the instructions of the COTP or their designated representative. Designated COTP representatives include United States Coast Guard commissioned, warrant, and petty officers.

(d) Information broadcasts. The COTP or a designated representative will inform the public through broadcast notices to mariners of the enforcement period for the safety zone as well as any changes in the dates and times of enforcement.

The Coast Guard is establishing a safety zone within Chequamegon Bay in Ashland, WI. This safety zone is intended to restrict vessels from specified waters in Chequamegon Bay during the 100th Ore Dock Anniversary Celebration Fireworks Display. This safety zone is necessary to protect spectators from the hazards associated with the fireworks display.

DATES:

This rule is effective from 6:30 p.m. through 7:30 p.m. on October 1, 2016.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0918 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The event sponsor notified the Coast Guard on September 26, 2016 that the fireworks display will be held on October 1, 2016, accordingly there is insufficient time to accommodate the comment period. Thus, delaying the effective date of this rule to wait for the comment period to run would be both impracticable and contrary to public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with the event.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest as it would inhibit the Coast Guard's ability to protect spectator and vessels from the hazards associated with the event.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Duluth (COTP) has determined that potential hazards associated with fireworks displays starting after 6:30 p.m. on October 1, 2016 will be a safety concern for anyone within a 420-foot radius of the launch site. The likely combination of recreational vessels, darkness punctuated by bright flashes of light, and fireworks debris falling into the water presents risks of collisions which could result in serious injuries or fatalities. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

IV. Discussion of the Rule

This rule establishes a safety zone from 6:30 p.m. through 7:30 p.m. October 1, 2016. The safety zone will cover all navigable waters within an area bounded by a circle with a 420-foot radius of the fireworks display launching site located in Ashland, WI at coordinates 46°36′02″ N., 090°52′49″ W. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

V. Regulatory Analyses

We developed this rule after considering numerous statutes and Executive order related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of Superior Bay in Superior, WI for 1 hour and during a time of year when commercial vessel traffic is normally low. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

B. Impact on Small Entities

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

C. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

E. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

F. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting no more than 1 hour that will prohibit entry within a 420-foot radius from where a fireworks display will be conducted. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

G. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

(a) Location. All waters of Chequamegon Bay within an area bounded by a circle with a 420-foot radius at position 46°36′02″ N., 090°52′49″ W.

(b) Effective period. This safety zone is effective from 6:30 p.m. through 7:30 p.m. on October 1, 2016.

(c) Regulations.

(1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Duluth, or his designated on-scene representative.

(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Duluth or his designated on-scene representative.

(3) The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Duluth or his on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Duluth or his on-scene representative.

Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Missouri State Implementation Plan (SIP) and the 40 CFR part 70 operating permits program. EPA is approving revisions to two Missouri rule(s) entitled, “Construction Permits Required,” and “Operating Permits.” This approval action is consistent with the July 12, 2013, U.S. Court of Appeals for the District of Columbia and the June 23, 2014, U.S. Supreme Court actions regarding Greenhouse Gas Prevention of Significant Deterioration and Title V Permitting. This action makes non-substantive changes to definitions, and language clarifications.

DATES:

This direct final rule will be effective December 2, 2016, without further notice, unless EPA receives adverse comment by November 2, 2016. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2016-0529, to http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Larry Gonzalez at (913) 551-7041, or by email at gonzalez.larry@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:

I. What is being addressed in this document?II. Have the requirements for approval of a SIP revision been met?III. What action is EPA taking?I. What is being addressed in this document?

EPA is approving revisions to the Missouri SIP and Operating Permits Program requested from four separate requests. In the first request dated August 8, 2011, the State of Missouri asked that EPA amend the SIP and the state's operating permits program to include rule revisions that incorporate Federal permitting requirements for greenhouse gas emissions under state rule 10 CSR 10-6.065.

In the second request, also dated August 8, 2011, the State of Missouri asked that EPA amend the SIP to incorporate Federal permitting requirements to address new construction projects that emit 100,000 tons per year or more of greenhouse gases, as well as clarifying some rule text.

In the third request dated August 31, 2012, the State of Missouri asked that EPA amend the SIP to include recently promulgated revisions to the state rule 10 CSR 10-6.065 in order to defer for a period of three years the application of Title V permitting to carbon dioxide emissions from biogenic sources. In addition to the biogenic deferral language, Missouri included non-substantive edits and minor administrative rule revisions in this submission. For example, Missouri relabeled 10 CSR 10-6.065(3)(A)5 to 10 CSR 10-6.065(3)(B), and reworded the following in that same subsection “40 CFR part 63, subpart EEE” to “40 CFR 63, subpart EEE.”

On July 14, 2016, the State of Missouri modified the 2011 and 2012 requests in a letter to EPA. The letter addresses the court directed revisions to EPA's GHG permitting provisions. Specifically, in the July 14, 2016, letter, Missouri identified regulatory language of the earlier submittals that it was withdrawing its request to EPA to approve into the SIP and notified EPA that the state will update its rules in the future to remove those provisions. The State explained that these changes to their earlier submittals are a result of court decisions by the Supreme Court (Utility Air Regulatory Group v. EPA, June 23, 2014) and the U.S. Court of Appeals for the District of Columbia (Coalition for Responsible Regulation, Inc. et al. v. EPA, April 10, 2015), in which the courts vacated certain permitting requirements that were included in Missouri's August 8, 2011, submission. In the July 2016 submittal, the state clarified this earlier request to EPA as follows:

(1) Missouri requested that in 10 CSR 10-6.060(8)(A), not include as part of the Missouri SIP the phrase “including the revision published at 75 FR 31606-07 (effective August 2, 2010).” Instead subsection (8)(A) will read “. . . promulgated as of July 1, 2009 are hereby incorporated . . .”

(2) Missouri requested that in 10 CSR 10-6.6065(2)(A)2., not include the words “Except that:” and do not include the subparagraphs (2)(A)2.A. and (2)(A)2.B. as part of the Missouri SIP.

In addition, Missouri requested that EPA only include into the Missouri SIP the non-substantive wording clarifications submitted on August 31, 2012, without the biogenic deferral wording revisions because the biogenic deferrals had expired.

These requested and remaining revisions to Missouri's earlier submittals are consistent with the changes in Federal permitting requirements that were necessitated by the two earlier mentioned court decisions. These changes will make Missouri's GHG permitting requirements included in the SIP consistent with current Federal requirements.

II. Have the requirements for approval of a SIP revision been met?

The state submissions have met the public notice requirements of SIP submissions in accordance with 40 CFR 51.102. The submissions also satisfy the completeness criteria of 40 CFR part appendix V. In addition, the revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

III. What action is EPA taking?

EPA is approving the request to amend the Missouri SIP and operating permits program by approving the State's request to amend 10 CSR 10-6.060, and 10 CSR 10-6.065 to align the State's rule with EPA's GHG Tailoring rule, streamline the public notice procedures to align them with similar procedures in the EPA rules, and allows the flexibility to publish notices on the internet.

We are processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

Incorporation by Reference

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Missouri Regulations described in the direct final amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

1 62 FR 27968 (May 22, 1997).

Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 2, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

ExplanationMissouri Department of Natural Resources* * * * * * *Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri10-6.060Construction Permits Required08/30/1110/3/16 [Insert Federal Register citation]Provisions of the 2010 PM2.5 PSD—Increments, SILs and SMCs rule (75 FR 64865, October 20, 2010) relating to SILs and SMCs that were affected by the January 22, 2013 U.S. Court of Appeals decision are not SIP approved.Provisions of the 2002 NSR reform rule relating to the Clean Unit Exemption, Pollution Control Projects, and exemption from recordkeeping provisions for certain sources using the actual-to-projected-actual emissions projections test are not SIP approved.In addition, we have not approved Missouri's rule incorporating EPA's 2007 revision of the definition of “chemical processing plants” (the “Ethanol Rule,” 72 FR 24060 (May 1, 2007) or EPA's 2008 “fugitive emissions rule,” 73 FR 77882 (December 19, 2008).Although exemptions previously listed in 10 CSR 10-6.060 have been transferred to 10 CSR 10-6.061, the Federally-approved SIP continues to include the following exemption, “Livestock and livestock handling systems from which the only potential contaminant is odorous gas.”Section 9, pertaining to hazardous air pollutants, is not SIP approved.EPA is not approving in subsection (8)(A) the phrase “including the revision published at 75 FR 31606-07 (effective August 2, 2010).”* * * * * * *10-6.065Operating Permits08/30/1110/3/16 [Insert Federal Register citation]EPA has not approved Section (4) as part of the SIP.

EPA is not approving in paragraph (2)(A)2 the words, “except that” and is not approving subparagraphs (2)(A)2.A. and (2)(A)2.B.

4. Appendix A to part 70 is amended by adding paragraph (ff) under Missouri to read as follows:Appendix A to Part 70—Approval Status of State and Local Operating Permits ProgramsMissouri

(ff) The Missouri Department of Natural Resources submitted revisions to CSR on April 28, 2011. We are approving this rule except for Section (4) which relates to the State Basic Operating permits, and we are not approving in paragraph (2)(A)2 the words, “except that” and are not approving subparagraphs (2) (A)2.A. and (2)(A)2.B. This approval is effective December 2, 2016.

The Environmental Protection Agency (EPA) is taking direct final action to approve a revision to the Wyoming hospital/medical/infectious waste incinerator (HMIWI) Section 111(d)/129 plan (the “plan”). The plan was submitted to the EPA to fulfill requirements of the Clean Air Act (CAA) and to implement and enforce the emissions guidelines (EG) for existing hospital/medical/infectious waste incinerators (HMIWI). The plan establishes emission limits; operator training and qualification requirements; performance testing, monitoring, and inspection requirements; and requirements for a waste management plan and reporting and recordkeeping requirements for existing hospital/medical/infectious waste incinerator units as specified in the October 6, 2009, amendments to the federal EG and New Source Performance Standards (NSPS), 40 CFR part 60, subparts Ce and Ec, respectively.

DATES:

This direct final rule is effective on December 2, 2016 without further notice, unless the EPA receives adverse written comments by November 2, 2016. If adverse comments are received, the EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R08-OAR-2016-0197 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

The EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the revision if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If the EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

II. What should I consider as I prepare my comments for the EPA?

A. Submitting Confidential Business Information (CBI). Do not submit CBI to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and,

III. Background

The EPA's statutory authority for the regulation of new and existing solid waste incineration units is outlined in the CAA sections 111 and 129. Section 129 of the CAA is specific to solid waste combustion, and requires the EPA to establish performance standards for each category of solid waste incineration units. Section 111 of the Act gives EPA the statutory authority to promulgate NSPS, applicable to new units, and/or EG for existing units. EG are implemented and enforced through either an EPA-approved state plan or a promulgated federal plan. Section 129(b)(2) requires states to submit to the EPA for approval state plans that implement and enforce the promulgated EG. Section 129(b)(3) requires the EPA to promulgate a federal plan (FP) within two years from the date on which the EG, or amendment, was promulgated. The FP is applicable to any affected facility if the state has failed to receive the EPA approval of the state plan, or revision. The FP acts as an enforcement place holder until the state submits and receives the EPA approval of its plan. State plan submittals must be consistent with the relevant emissions guidelines, in this instance 40 CFR part 60, subpart Ce, and the requirements of 40 CFR part 60, subpart B and part 62, subpart A. Section 129 of the CAA regulates the following substances or mixtures: Organics (dioxins/furans), carbon monoxide, metals (cadmium, lead, and mercury), acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides) and particulate matter (which includes opacity). The initial Wyoming plan for HMIWI units was approved by the EPA on August 21, 2000 (65 FR 38732). The plan approval is codified in 40 CFR part 62, subpart ZZ. On May 13, 2015, the Wyoming Department of Environmental Quality (DEQ) submitted to the EPA a revised Section 111(d)/129 plan for HMIWI units. The DEQ made minor edits to the plan at the request of the EPA and the DEQ revised and resubmitted its submission to the EPA on November 24, 2015. The submitted plan revision was in response to the October 6, 2009 amendments to federal EG and NSPS requirements for HMIWI units, 40 CFR part 60, subparts Ce and Ec, respectively (74 FR 51367). This rulemaking action will supersede the EPA's August 21, 2000 (65 FR 38732) approval of Wyoming's initial plan.

IV. Summary of Wyoming's HMIWI Plan Revision

The EPA has reviewed the Wyoming HMIWI plan revision submittal in the context of the requirements of 40 CFR part 60, subparts B and Ce, as amended, and part 62, subpart A. The plan contained (1) a demonstration of Wyoming's legal authority to implement the plan; (2) identification and a copy of the state's adoption of Subpart Ce into rule Wyoming Air Quality Standards and Regulations (WAQSR) Chapter 4, Section 5, and Chapter 5 as the mechanism to enforce the emissions guidelines; (3) an inventory of one known designated facility and an inventory of its air emissions; (4) emission limits that are as protective as the emissions guidelines; (5) a final compliance date no later than October 6, 2014; (6) testing, monitoring, inspection, operator training and qualification, waste management plan, and recordkeeping and reporting requirements for the designated facilities; (7) documentation of public hearing(s) on the plan; (8) provisions to submit annual state progress reports to the EPA; and (9) a commitment to the EPA that all Title V operating permits, modifications, and renewals for designated facilities will specify all applicable state requirements and 40 CFR part 62, subpart ZZ. The submitted plan revision meets all requirements of 40 CFR part 60, subparts B and Ce, as amended, and part 62, subpart A.

V. What action is the EPA taking today?

The EPA is approving the Wyoming HMIWI Section 111(d)/129 plan revision that reflects amendments made to 40 CFR part 60, subparts Ce and Ec. Therefore, the EPA is amending 40 CFR part 62, subpart ZZ to reflect this action. This approval is based on the EPA's review of the plan, discussed above. This plan revision approval does not negate or void any of the initial August 21, 2000 plan approval requirements, including compliance dates for any affected facility. The scope of this plan revision approval is limited to the provisions of 40 CFR parts 60 and 62 for existing HMIWI units, as referenced in the EG, subpart Ce, and the related NSPS, subpart Ec, as amended.

The EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the Proposed Rules section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the revision if adverse comments are filed. This rule will be effective December 2, 2016 without further notice unless we receive adverse comments by November 2, 2016. If we receive adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

VI. Statutory and Executive Orders Review

Under the Clean Air Act, the Administrator is required to approve a Section 111(d)/129 plan submission that complies with the provisions of the Act and applicable federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing Section 111(d)/129 plan submissions, the EPA's role is to approve state actions, provided that they meet the criteria of the Clean Air Act. Accordingly, this direct final action merely approves some state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact in a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045(62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note)because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The state plan is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian Country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq, as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 2, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS1. The authority citation for part 62 continues to read as follows:Authority:

42 U.S.C. 7401 et seq.

Subpart ZZ—Wyoming2. Section 62.12610 is revised to read as follows:§ 62.12610Identification of plan.

Section 111(d)/129 Plan for Hospital/Medical/Infectious Waste Incinerators and the associated State regulation, Chapter 4, Section 5, and Chapter 5 of the Wyoming Air Quality Standards and Regulations, submitted by the State on September 7, 1999 and November 9, 1999, and as amended on May 13, 2015 and November 24, 2015.

3. Section 62.12611 is revised to read as follows:§ 62.12611Identification of sources.

The plan applies to each individual hospital/medical/infectious waste incinerator:

(a) For which construction was commenced on or before June 20, 1996, or for which modification was commenced on or before March 16, 1998.

(b) For which construction was commenced after June 20, 1996 but no later than December 1, 2008, or for which modification is commenced after March 16, 1998 but no later than April 6, 2010.

This regulation establishes an exemption from the requirement of a tolerance for residues of Bacillus mycoides solate J in or on all agricultural commodities when used in accordance with label directions and good agricultural practices. Certis USA LLC submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of Bacillus mycoides isolate J under FFDCA.

DATES:

This regulation is effective October 3, 2016. Objections and requests for hearings must be received on or before December 2, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES:

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0920, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

B. How can I get electronic access to other related information?

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

C. How can I file an objection or hearing request?

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0920 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 2, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0920, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

II. Background

In the Federal Register of January 28, 2015 (80 FR 4525) (FRL-9921-55), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 4F8252) by Certis USA LLC, 9145 Guilford Rd., Suite 175, Columbia, MD 21046. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of Bacillus mycoides isolate J, in or on all agricultural commodities. That document referenced a summary of the petition prepared by the petitioner Certis USA LLC, which is available in the docket via http://www.regulations.gov. There were no comments received in response to the notice of filing.

In addition, the Agency is removing the existing paragraph contained in section 180.1269 because that exemption from the requirement of a tolerance for Bacillus mycoides isolate J residues has expired.

III. Final RuleA. EPA's Safety Determination

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption, and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”

EPA evaluated the available toxicity and exposure data on Bacillus mycoides isolate J and considered its validity, completeness, and reliability, as well as the relationship of this information to human risk. A full explanation of the data upon which EPA relied and its risk assessment based on that data can be found within the May 9, 2016, document entitled “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for Bacillus mycoides isolate J.” This document, as well as other relevant information, is available in the docket for this action as described under ADDRESSES. Based upon its evaluation, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Bacillus mycoides isolate J. Therefore, an exemption from the requirement of a tolerance is established for residues of Bacillus mycoides isolate J in or on all agricultural commodities when used in accordance with label directions and good agricultural practices.

B. Analytical Enforcement Methodology

An analytical method is not required for enforcement purposes for the reasons contained in the May 9, 2016, document entitled “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for Bacillus mycoides isolate J” and because EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.

IV. Statutory and Executive Order Reviews

This action establishes a tolerance exemption under FFDCA section 408(d) in response to a petition submitted to EPA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this action, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, EPA has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require EPA's consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

V. Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

PART 180—[AMENDED]1. The authority citation for part 180 continues to read as follows:Authority:

21 U.S.C. 321(q), 346a and 371.

2. Revise § 180.1269 to read as follows:§ 180.1269 Bacillus mycoides isolate J; exemption from the requirement of a tolerance.

An exemption from the requirement of a tolerance is established for residues of Bacillus mycoides isolate J in or on all agricultural commodities when used in accordance with label directions and good agricultural practices.

In this document, the Federal Communications Commission (Commission) announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection requirements associated with certain of the provision of the rules adopted as part of the Commission's Third Further Notice of Proposed Rulemaking, Order on Reconsideration, and Further Report and Order, (Lifeline Third Reform Order). This notice is consistent with the Lifeline Third Reform Order, which stated that the Commission would publish a document in the Federal Register announcing OMB approval and the effective date of those rules.

DATES:

The rule amendments to 47 CFR 54.202(a)(6), (d), and (e), and 54.205(c) published at 81 FR 33025, May 24, 2016, will become effective October 3, 2016. The rule amendments to 47 CFR 54.101, 54.401(a)(2), (b), (c), (f), 54.403(a), 54.405(e)(1), (e)(3) through (e)(5), 54.407(a), (c)(2), (d), 54.408, 54.409(a)(2), 54.410(b) through (e), (g) through (h), 54.411, 54.416(a)(3), 54.420(b), and 54.422(b)(3) will become effective December 2, 2016 . The rule amendments to 47 CFR 54.410(f) will become effective January 1, 2017.

The rule amendments to 47 CFR 54.400(l) are applicable October 3, 2016. The rule amendments to 47 CFR 54.400(f), (j), and (m) through (o) are applicable December 2, 2016.

This document announces that, on September 20, 2016, OMB approved, for a period of three years, the information collection requirements contained in the Commission's Order, FCC 16-38, published at 81 FR 33025, May 24, 2016. The OMB Control Number is 3060-0819. The Commission publishes this notice as an announcement of the effective date rules requiring OMB approval. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room 1-A620, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-0819, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov.

To request material in accessible formation for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Synopsis

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on September 20, 2016, for the information collection requirements contained in the Commission's rules in 47 CFR part 54.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0819.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

Respondents: Individuals or households and business or other for-profit.

Number of Respondents and Responses: 21,162,260 respondents; 23,956,240 responses.

Estimated Time per Response: 0.0167 hours-250 hours.

Frequency of Response: Annual and on occasion reporting requirements and third party disclosure requirement.

Obligation To Respond: Required to obtain or retain benefits. Statutory authority is contained in Section 1 through 4, 201 through 205, 254, 303(r) and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151 through 154, 201 through 205, 254, 303(r) and 403, and section 706 of the Telecommunications Act of 1996, 47 U.S.C. 1302.

Total Annual Burden: 13,484,412 hours.

Total Annual Cost: $937,500.

Privacy Act Impact Assessment: Yes. The Commission completed a Privacy Impact Assessment (PIA) for some of the information collection requirements contain in this collection. The PIA was published in the Federal Register at 78 FR 73535 on December 6, 2013. The PIA may be reviewed at: http://www.fcc.gov/omd/privacyact/Privacy_Impact_Assessment.html.

Nature and Extent of Confidentiality: Some of the requirements contained in this information collection does affect individuals or households, and thus, there are impacts under the Privacy Act. The FCC's system of records notice (SORN), FCC/WCB-1, “Lifeline Program.” The Commission will use the information contained in FCC/WCB-1 to cover the personally identifiable information (PII) that is required as part of the Lifeline Program (“Lifeline”). As required by the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the Commission also published a SORN, FCC/WCB-1 “Lifeline Program” in the Federal Register on December 6, 2013 (78 FR 73535).

Also, respondents may request materials or information submitted to the Commission or to the Universal Service Administrative Company (USAC or Administrator) be withheld from public inspection under 47 CFR 0.459 of the FCC's rules. We note that USAC must preserve the confidentiality of all data obtained from respondents; must not use the data except for purposes of administering the universal service programs; and must not disclose data in company-specific form unless directed to do so by the Commission.

Needs and Uses: On April 27, 2016, the Commission released the Lifeline Third Reform Order modernizing its low-income universal service support mechanisms. This revised information collection addresses requirements to carry out the programs to which the Commission committed itself in the Lifeline Third Reform Order. Under this information collection, the Commission seeks to revise the information collection to comply with the Commission's new rules, adopted in the Lifeline Third Reform Order, regarding phasing out support for mobile voice over the next six years, requiring Eligible Telecommunications Carriers (ETCs) to certify compliance with the new minimum service requirements, creating a new ETC designation for Lifeline Broadband Providers (LBPs), updating the obligations to advertise Lifeline offerings, modifying the non-usage de-enrollment requirements within the program, moving to rolling annual subscriber recertification, and streamlining the first-year ETC audit requirements. Also, the Commission seeks to update the number of respondents for all the existing information collection requirements, thus increasing the total burden hours for some requirements and decreasing the total burden hours for other requirements. Finally, the Commission seeks to revise the FCC Forms 555, 497, and 481 to incorporate the new Commission rules and modify the filings for FCC Forms 555 and 497 to include detailed field descriptions.

The Department of Energy (DOE) proposes to amend the regulations implementing the loan guarantee provisions in Title XVII of the Energy Policy Act of 2005 (Title XVII or the Act). The proposal is intended to increase clarity and transparency, reduce paperwork, and provide a more workable interpretation of certain statutory provisions in light of DOE's experience with the Title XVII program.

DATES:

Comments on this proposed rule must be postmarked no later than November 2, 2016.

ADDRESSES:

You may submit comments, identified by RIN 1901-AB38, using any of the following methods:

This notice of proposed rulemaking and any comments that DOE receives will be made available on the regulations.gov Web site at: http://www.regulations.gov. You also may obtain copies of comments by contacting Mr. Westergard using the information below.

SUPPLEMENTARY INFORMATION:I. Introduction and BackgroundII. Discussion of Proposed RuleIII. Public Comment ProceduresIV. Regulatory ReviewV. Approval of the Office of the SecretaryI. Introduction and Background

Section 1703 (section 1703) authorizes the Secretary of Energy (Secretary) to make loan guarantees for projects that avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases. Such projects must also employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued. The two principal goals of section 1703 are to encourage commercial use in the United States of new or significantly improved energy related technologies and to achieve substantial environmental benefits. Section 1703 also identifies ten categories of technologies and projects that are potentially eligible for loan guarantees. Commercial use of these technologies is expected to help sustain and promote economic growth, produce a more stable and secure energy supply and economy for the United States, and improve the environment.

As a result of experience gained implementing the loan guarantee program authorized by section 1703, and information received from program participants, including applicants, borrowers, sponsors, and lenders, as well as various energy industry groups, DOE proposes to amend the existing regulations as described in Section II of this proposed rule. The proposal is intended to provide increased clarity and transparency, reduce paperwork, and provide a more workable interpretation of certain statutory provisions in light of DOE's experience with operation of the Title XVII program.

II. Discussion of Proposed Rule

Section 1702(a) of Title XVII directs the Secretary to make guarantees on the terms and conditions determined by the Secretary, after consultation with the Secretary of the Treasury, and in accordance with the prescriptions set forth in section 1702. This provision authorizes the Secretary to establish the loan guarantee program and to determine the terms and conditions of individual loan guarantees, after consultation with the Secretary of Treasury, subject to the limitations in paragraphs (b) through (k) of section 1702. Pursuant to direction provided in Public Law 110-5 (Feb. 15, 2007) DOE promulgated regulations to implement Title XVII which are currently found at 10 CFR part 609 (the “Title XVII Rule”). See 74 FR 63544 (Dec. 4, 2009). (The proposed rule was issued on Aug 7, 2009 (74 FR 39569).) The Title XVII Rule addresses matters such as (1) the manner in which proposed projects are vetted, (2) precisely which project costs are eligible for financing, (3) the adequacy and character of equity capital required from sponsors, and (4) what types of co-financing and subordination arrangements would be acceptable to DOE. Similarly, in implementing the Secretary's general authority under section 1702(a) and the Title XVII Rule, the Loan Programs Office has adopted extensive credit, loan monitoring and risk monitoring policies and procedures, detailed conditional commitment letters and term sheets, and loan guarantee agreements to carry out the purposes of Title XVII.

In this rulemaking, DOE proposes amendments to the regulations at 10 CFR part 609 based on its experience in implementing the loan guarantee program. The proposed changes address topics such as the exchange of information with potential applicants and the solicitation process, the pre-application process, the restriction of a project to a single location, and the imposition of a risk-based fee. These issues are described in the paragraphs that follow.

For the past several years, the DOE Loan Programs Office has increased communication with interested members of the public regarding the Office, its programs, and solicitations. DOE has prepared and distributed a number of presentations explaining the application process and the types of projects that may be eligible under its solicitations. The Executive Director of the Loan Programs Office has participated in numerous public discussions regarding the program. DOE has also increased communication by regular, broadly distributed email communications to thousands of recipients that have expressed an interest in keeping up with developments in the Loan Programs Office. Contacts by potential applicants regarding the program have significantly increased as a result of these efforts. Nevertheless, the proposed rule includes changes intended to clarify the circumstances under which potential applicants may communicate with DOE prior to submitting an application. DOE expects that the proposed changes would increase transparency and result in more applications by qualified applicants with respect to potential eligible projects.

The provisions of the existing rule relating to Pre-Applications have caused considerable confusion among potential applicants and applicants. In this proposed rule, DOE proposes to eliminate the existing pre-application process and codify procedures that divide the application into two parts. The Part I submission would provide DOE with a description of the project or facility, technical information, background information on management, financing strategy, and progress to date of critical path schedules. These schedules would include items such as obtaining licenses or regulatory permits and approvals, site preparation and long lead-time procurements, and would be used as a basis for determining the eligibility of the project and the project's readiness to proceed. Applicants whose Part I application is sufficient to indicate, on a preliminary basis, the eligibility of the project and that it is ready to proceed would be invited to submit Part II of the application. The Part II submission would involve substantially more, and substantially more detailed, information than is required for the Part I submission. The proposed process of requiring a two-part application is designed, in part, to enable DOE to screen interested projects and provide an early indication of projects' eligibility for a loan guarantee under this program. The two-part application process would additionally allow DOE to charge the required fee in two parts, making it more economical for smaller businesses to apply. By allowing DOE to engage in an initial review of project proposals, the two-part application process would reduce the paperwork burden for applicants whose projects are not ready to move forward into Part II.

Although there is no statutory requirement that all parts of a project be located at a single location, DOE's solicitations have provided that generally, a Project is restricted to one location within the United States but that DOE, in its discretion, could consider an application for a project using a particular technology that is proposed to be situated in more than one location in the United States if multiple locations are integral components of a unitary plan, necessary to the viability of the Project, and at least one of the locations is identified in the application. Applicants and potential applicants found this requirement of DOE's solicitations difficult to understand. Additionally, this requirement inhibits an applicant's ability to propose certain types of distributed energy facilities. DOE reconsidered the need for such a requirement and proposes a revised definition of Eligible Project that would explicitly state that a project may be located at two or more locations in the United States if the project is comprised of installations or facilities employing a single New or Significantly Improved Technology that is deployed pursuant to an integrated and comprehensive business plan.

DOE also proposes to include in the rule provisions for the use of Risk-Based Charges. DOE, working in conjunction with the Federal Financing Bank (“FFB”), has developed a program under which borrowers for certain types of transactions pay a “credit-based interest rate spread” in addition to interest otherwise payable on loans that are issued by FFB. Use of interest rate spreads or other charges based upon the creditworthiness or specific risks arising from individual transactions are commonplace in private-sector commercial loan transactions, including private-sector project finance loan transactions. Such spreads or other charges are also used by other federal credit programs comparable to the Title XVII loan guarantee program, such as those administered by the Overseas Private Investment Corporation and the Export-Import Bank of the United States. Use of Risk-Based Charges is permitted pursuant to the grant of authority to the Secretary in Section 1702(a) to determine the terms and conditions of the Title XVII loan guarantee program.

A number of other changes have been included to increase clarity and transparency. Among those changes are: Definitions have been clarified, shortened where possible, and added; specific references to the Cargo Preference Act and the Davis Bacon Act have been added; an introductory section on how the rule is to be interpreted has been added; and various provisions of the existing rule have been re-organized to more-appropriate places in the rule. In a number of places, references to the statutory requirement that DOE consult with the Secretary of the Treasury previously included in Title XVII Rule have been removed. Those references were removed solely because they were unnecessary for consideration by applicants and potential applicants. DOE's statutory obligation to consult with the Secretary of the Treasury under Section 1702(a) of Title XVII remains unchanged, and no change is intended in the existing consultation arrangements between the Secretary of Energy and the Secretary of the Treasury.

III. Public Comment Procedures

Interested persons are invited to participate in this proceeding by submitting data, views, or arguments. Written comments should be submitted to the address, and in the form, indicated in the ADDRESSES section of this notice of proposed rulemaking. To help DOE review the comments, interested persons are asked to refer to specific proposed rule provisions, if possible.

If you submit information that you believe to be exempt by law from public disclosure, you should submit one complete copy, as well as one copy from which the information claimed to be exempt by law from public disclosure has been deleted. DOE is responsible for the final determination with regard to disclosure or nondisclosure of the information and for treating it accordingly under the DOE Freedom of Information Act regulations at 10 CFR 1004.11.

IV. Regulatory ReviewA. Executive Order 12866

This proposed rule has been determined to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).

B. National Environmental Policy Act

DOE has determined that this proposed rule is covered under the Categorical Exclusion found in the DOE's National Environmental Policy Act regulations at paragraph A.5 of appendix A to subpart D, 10 CFR part 1021, which applies to rulemaking that amends an existing rule or regulation which does not change the environmental effect of the rule or regulation being amended.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of General Counsel's Web site: http://www.energy.gov/gc/downloads/executive-order-13272-consideration-small-entities-agency-rulemaking.

DOE is not obliged to prepare a regulatory flexibility analysis for this rulemaking because there is not a requirement to publish a general notice of proposed rulemaking for rules related to loans under the Administrative Procedure Act (5 U.S.C. 553(a)(2)).

D. Paperwork Reduction Act

Information collection requirements for the DOE regulations at 10 CFR part 609 were previously approved by OMB pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and the procedure implementing that Act (5 CFR 1320.1 et seq.) under OMB Control Number 1910-5134. This proposed rule contains revised information collection requirements subject to approval by OMB. DOE has submitted the proposed revised collection of information to OMB for approval. Public reporting burden for the revised requirements in this proposed rule is estimated to average 130 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses are expected to be collected electronically.

DOE invites public comment on: (1) Whether the proposed information collection requirements are necessary for the performance of DOE's functions, including whether the information will have practical utility; (2) the accuracy of DOE's estimates of the burden of the proposed information collection requirements; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the information collection requirements on respondents. Comments should be addressed to the Department of Energy Desk Officer, Office of Information and Regulatory Affairs, OMB, 725 17th Street NW., Washington, DC 20503. Persons submitting comments to OMB also are requested to send a copy to the contact person at the address given in the ADDRESSES section of this notice of proposed rulemaking. Interested persons may obtain a copy of the DOE's Paperwork Reduction Act Submission to OMB from the contact person named in this notice of proposed rulemaking. Notwithstanding any other provision of law, a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

The term “Federal mandate” is defined in the Act to mean a Federal intergovernmental mandate or a Federal private sector mandate. Although the proposed rule would impose certain requirements on non-Federal governmental and private sector applicants for loan guarantees, the Act's definitions of the terms “Federal intergovernmental mandate” and “Federal private sector mandate” exclude among other things, any provision in legislation, statute, or regulation that is a condition of Federal assistance or a duty arising from participation in a voluntary program. The proposed rule would establish requirements that persons voluntarily seeking loan guarantees for projects that would use certain new and improved energy technologies must satisfy as a condition of a Federal loan guarantee. Thus, the proposed rule falls under the exceptions in the definitions of “Federal intergovernmental mandate” and “Federal private sector mandate” for requirements that are a condition of Federal assistance or a duty arising from participation in a voluntary program. The Act does not apply to this rulemaking.

F. Treasury and General Government Appropriations Act, 1999

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. The proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

G. Executive Order 13132

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

H. Executive Order 12988

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.

I. Treasury and General Government Appropriations Act, 2001

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB.

OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

J. Executive Order 13211

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and has not been designated by OIRA as a significant energy action, and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

K. Executive Order 12630

The Department has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this rulemaking would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.

V. Approval of the Office of the Secretary

The Secretary of Energy has approved publication of this notice of proposed rulemaking.

For the reasons stated in the preamble, DOE proposes to revise part 609 of chapter II of title 10 of the Code of Federal Regulations to read as follows:

PART 609—LOAN GUARANTEES FOR PROJECTS THAT EMPLOY INNOVATIVE TECHNOLOGIESSec.609.1Purpose and scope.609.2Definitions and interpretation.609.3Solicitations.609.4Submission of applications.609.5Programmatic, technical and financial evaluation of applications.609.6Term sheets and conditional commitments.609.7Closing on the loan guarantee agreement.609.8Loan guarantee agreement.609.9Lender servicing requirements.609.10Project costs.609.11Fees and charges.609.12Full faith and credit and incontestability.609.13Default, demand, payment, and foreclosure on collateral.609.14Preservation of collateral.609.15Audits and access to records.609.16Deviations.Authority:

42 U.S.C. 7254, 16511-16514.

§ 609.1Purpose and scope.

(a) This part sets forth the policies and procedures that DOE uses for receiving, evaluating, and approving applications for loan guarantees to support Eligible Projects under section 1703 of the Energy Policy Act of 2005 (Act).

(b) This part applies to all Applications, Conditional Commitments, and Loan Guarantee Agreements.

(c) Part 1024 of chapter X of title 10 of the Code of Federal Regulations (PROCEDURES FOR FINANCIAL ASSISTANCE APPEALS) shall not apply to actions taken under this part.

§ 609.2Definitions and interpretation.

(a) Definitions. When used in this part the following words have the following meanings.

Act means Title XVII of the Energy Policy Act of 2005 (42 U.S.C. 16511-16514), as amended.

Administrative cost of issuing a loan guarantee means the total of all administrative expenses that DOE incurs during:

(1) The evaluation of an Application for a loan guarantee;

(2) The negotiation and offer of a Term Sheet;

(3) The negotiation of a Loan Guarantee Agreement and related documents, including the issuance of a Guarantee; and

(4) The servicing and monitoring of a Loan Guarantee Agreement, including during the construction, startup, commissioning, shakedown, and operational phases of an Eligible Project.

Applicant means a Person, including a prospective Borrower or Project Sponsor, that submits an Application to DOE.

Application means a written submission of materials responsive to a Solicitation that satisfies § 609.4 of this part.

Application fee means the fee or fees required to be paid by an Applicant in connection with submission of an Application and specified in a Solicitation. The Application Fee does not include the Credit Subsidy Cost.

Attorney General means the Attorney General of the United States.

Borrower means any Person that enters into a Loan Guarantee Agreement with DOE and issues Guaranteed Obligations.

Commercial technology means a technology in general use in the commercial marketplace in the United States at the time the Term Sheet is offered by DOE. A technology is in general use if it is being used in three or more facilities that are in commercial operation in the United States for the same general purpose as the proposed project, and has been used in each such facility for a period of at least five years. The five-year period for each facility shall start on the in-service date of the facility employing that particular technology or, in the case of a retrofit of a facility to employ a particular technology, the date the facility resumes commercial operation following completion and testing of the retrofit. For purposes of this section, facilities that are in commercial operation include projects that have been the recipients of a loan guarantee from DOE under this part.

Conditional commitment means a Term Sheet offered by DOE and accepted by the offeree of the Term Sheet, all in accordance with § 609.6(c) of this part; provided, that the Secretary may terminate a Conditional Commitment for any reason at any time prior to the execution of the Loan Guarantee Agreement; and provided, further, that the Secretary may not delegate this authority to terminate a Conditional Commitment.

Contracting officer means the Secretary of Energy or a DOE official authorized by the Secretary to enter into, administer or terminate DOE Loan Guarantee Agreements and related contracts on behalf of DOE.

Credit subsidy cost has the same meaning as “cost of a loan guarantee” in section 502(5)(C) of the Federal Credit Reform Act of 1990, which is the net present value, at the time the Loan Guarantee Agreement is executed, of the following estimated cash flows, discounted to the point of disbursement:

(1) Payments by the Government to cover defaults and delinquencies, interest subsidies, or other payments; less

(2) Payments to the Government including origination and other fees, penalties, and recoveries; including the effects of changes in loan or debt terms resulting from the exercise by the Borrower, Eligible Lender or other Holder of an option included in the Loan Guarantee Agreement.

Davis-Bacon act means the statute referenced in section 1702(k) of the Act.

DOE means the United States Department of Energy.

Eligible lender means either:

(1) Any Person formed for the purpose of, or engaged in the business of, lending money that, as determined by DOE in each case, is:

(i) Not debarred or suspended from participation in a Federal government contract or participation in a non-procurement activity (under a set of uniform regulations implemented for numerous agencies, such as DOE, at 2 CFR part 180);

(ii) Not delinquent on any Federal debt or loan;

(iii) Legally authorized and empowered to enter into loan guarantee transactions authorized by the Act and these regulations;

(iv) Able to demonstrate experience in originating and servicing loans for commercial projects similar in size and scope to the Eligible Project, or able to procure such experience through contracts acceptable to DOE; and

(v) Able to demonstrate experience as the lead lender or underwriter by presenting evidence of its participation in large commercial projects or energy-related projects or other relevant experience, or able to procure such experience through contracts acceptable to DOE; or

(2) The Federal Financing Bank.

Eligible project means a project that:

(1) Is located in the United States at one location, except that the project may be located at two or more locations in the United States if the project is comprised of installations or facilities employing a single New or Significantly Improved Technology that is deployed pursuant to an integrated and comprehensive business plan. An Eligible Project in more than one location is a single Eligible Project;

(2) Deploys a New or Significantly Improved Technology; and

(3) Satisfies all applicable requirements of section 1703 of the Act, the applicable Solicitation, and this part.

Equity means cash contributed to the permanent capital stock (or equivalent) of the Borrower or the Eligible Project by the shareholders or other owners of the Borrower or the Eligible Project. Equity does not include proceeds from the non-guaranteed portion of a Guaranteed Obligation, proceeds from any other non-guaranteed loan or obligation, or the value of any government assistance or support.

Facility fee means the fee, to be paid in the amount and in the manner provided in the Term Sheet, to cover the Administrative Cost of Issuing a Loan Guarantee for the period from the Borrower's acceptance of the Term Sheet through issuance of the Guarantee.

Federal financing bank means an instrumentality of the United States government created by the Federal Financing Bank Act of 1973, under the general supervision of the Secretary of the Treasury.

Guarantee means the undertaking of the United States of America, acting through the Secretary pursuant to Title XVII of the Energy Policy Act of 2005, to pay in accordance with the terms thereof, principal and interest of a Guaranteed Obligation.

Guaranteed obligation means any loan or other debt obligation of the Borrower for an Eligible Project for which DOE guarantees all or any part of the payment of principal and interest under a Loan Guarantee Agreement entered into pursuant to the Act.

Holder means any Person that holds a promissory made by the Borrower evidencing the Guaranteed Obligation (or his designee or agent).

Intercreditor agreement means any agreement or instrument (or amendment or modification thereof) among DOE and one or more other Persons providing financing or other credit arrangements to the Borrower or an Eligible Project) or that otherwise provides for rights of DOE in respect of a Borrower or in respect of an Eligible Project, in each case in form and substance satisfactory to DOE.

Loan agreement means a written agreement between a Borrower and an Eligible Lender containing the terms and conditions under which the Eligible Lender will make a loan or loans to the Borrower for an Eligible Project.

Loan guarantee agreement means a written agreement that, when entered into by DOE and a Borrower, and, if applicable, an Eligible Lender, establishes the obligation of DOE to guarantee the payment of all or a portion of the principal of, and interest on, specified Guaranteed Obligations, subject to the terms and conditions specified in the Loan Guarantee Agreement.

New or significantly improved technology means a technology, or a defined suite of technologies, concerned with the production, consumption, or transportation of energy and that is not a Commercial Technology, and that has either:

(1) Only recently been developed, discovered, or learned; or

(2) Involves or constitutes one or more meaningful and important improvements in productivity or value, in comparison to Commercial Technologies in use in the United States at the time the Term Sheet is issued.

OMB means the Office of Management and Budget in the Executive Office of the President.

Person means any natural person or any legally constituted entity, including a state or local government, tribe, corporation, company, voluntary association, partnership, limited liability company, joint venture, and trust.

Project costs mean those costs, including escalation and contingencies, that are to be expended or accrued by a Borrower and are necessary, reasonable, customary and directly related to the design, engineering, financing, construction, startup, commissioning and shakedown of an Eligible Project, as specified in § 609.10(a) of this part. Project Costs do not include costs for the items set forth in § 609.10(b) of this part.

Project sponsor means any Person that assumes substantial responsibility for the development, financing, and structuring of an Eligible Project and, if not the Applicant, owns or controls, by itself and/or through individuals in common or affiliated business entities, a five percent or greater interest in the proposed Eligible Project, the Borrower or the Applicant.

Risk-based charge means a charge that, together with the principal and interest on the guaranteed loan, or at such other times as DOE may determine, is payable on specified dates during the term of a Guaranteed Obligation.

Secretary means the Secretary of Energy or a duly authorized designee or successor in interest.

Solicitation means an announcement that DOE is accepting Applications that is widely disseminated to the public on the DOE Web site or otherwise, and which satisfies the requirements of § 609.3(b) of this part.

Term sheet means a written offer for the issuance of a loan guarantee, executed by the Secretary (or a DOE official authorized by the Secretary to execute such offer), delivered to the offeree, that sets forth the detailed terms and conditions under which DOE and the Applicant will execute a Loan Guarantee Agreement.

United States means the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa and any territory or possession of the United States of America.

(b) Interpretations. This part shall be interpreted using the following guidelines.

(1) The word “discretion” when used with reference to DOE, including the Secretary, means “sole discretion.”

(2) Defined terms in the singular shall include the plural and vice versa, and the masculine, feminine or neuter gender shall include all genders.

(3) The word “or” is not exclusive.

(4) References to laws by name or popular name are references to the version of such law appearing in the United States Code and include any amendment, supplement or modification of such law, and all regulations, rulings, and other laws promulgated thereunder.

(5) References to information or documents required or allowed to be submitted to DOE mean information or documents that are marked as provided in 10 CFR 600.15(b). A document or information that is not marked as provided in 10 CFR 600.15(b) will not be considered as having been submitted to or received by DOE.

(6) A reference to a Person includes such Person's successors and permitted assigns.

(7) The words “include,” “includes” and “including” are not limiting and mean include, includes and including “without limitation” and “without limitation by specification.”

(8) The words “hereof,” “herein” and “hereunder” and words of similar import refer this part as a whole and not to any particular provision of this part.

§ 609.3Solicitations.

(a) DOE may invite the submission of Applications for loan guarantees for Eligible Projects pursuant to a Solicitation.

(b) Each Solicitation must include, at a minimum, the following information:

(1) The dollar amount of loan guarantee authority potentially being made available by DOE in that Solicitation;

(2) The place and deadline for submission of Applications;

(3) The name and address of the DOE representative whom a potential Applicant may contact to receive further information and a copy of the Solicitation;

(4) The form, format, and page limits applicable to the Application;

(5) The amount of the Application Fee and any other fees that will be required;

(6) The programmatic, technical, financial and other factors that DOE will use to evaluate response submissions, and their relative weightings in that evaluation; and

(7) Such other information as DOE may deem appropriate.

(c) Using procedures as may be announced by DOE a potential Applicant may request a meeting with DOE to discuss its potential Application. At its discretion, DOE may meet with a potential Applicant, either in person or electronically, to discuss its potential Application. DOE may provide a potential Applicant with a preliminary response regarding whether its proposed Application may constitute an Eligible Project. DOE is not permitted to design an Eligible Project for an Applicant, but may respond, in its discretion, in general terms to specific proposals. DOE's responses to questions from potential Applicants and DOE's statements to potential Applicants are pre-decisional and preliminary in nature. Any such responses and statements are subject in their entirety to any final action by DOE with respect to an Application submitted in accordance with § 609.4 of this part.

§ 609.4Submission of applications.

(a) In response to a Solicitation, an Applicant must meet all requirements and provide all information specified in this part and the Solicitation in the manner and on or before the date specified therein. DOE may direct that Applications be submitted in more than one part; provided, that the parts of such Application, taken as a whole, satisfy the requirements of § 609.4(c) and this part. In such event, subsequent parts of an Application may be filed only after DOE invites an Applicant to make an additional submission. The initial part of an Application may be used by DOE to determine the likelihood that the project proposed by an Applicant will be an Eligible Project, and to evaluate such project's readiness to proceed. If there have been any material amendments, modifications or additions made to the information previously submitted by an Applicant, the Applicant shall provide a detailed description thereof, including any changes in the proposed project's financing structure or other terms, promptly upon request by DOE. Where DOE has directed that an Application be submitted in parts, DOE may provide for payment of the Application Fee in parts.

(b) An Applicant may submit only one Application for one proposed project using a particular technology. An Applicant may not submit an Application or Applications for multiple Eligible Projects using the same technology. An Applicant may submit Applications for multiple proposed projects using different technologies. For purposes of this paragraph, the term Applicant shall include the Project Sponsor and any subsidiaries or affiliates of the Project Sponsor.

(c) An Application must include, at a minimum, the following information and materials:

(1) A completed Application form signed by an individual with full authority to bind the Applicant, including the commitments and representations made in each part of the Application;

(2) The applicable Application Fee;

(3) A description of how and to what measurable extent the proposed project avoids, reduces, or sequesters air pollutants and/or anthropogenic emissions of greenhouse gases, including how to measure and verify those effects;

(4) A description of the nature and scope of the proposed project, including:

(i) Key project milestones;

(ii) Location or locations of the proposed project;

(iii) Identification and commercial feasibility of the New or Significantly Improved Technology to be deployed;

(iv) How the Applicant intends to deploy such New or Significantly Improved Technology in the proposed project; and

(v) How the Applicant intends to assure, to the extent possible, the further commercial availability of the New or Significantly Improved Technology in the United States.

(5) An explanation of how the proposed project qualifies as a project within the category or categories of projects referred to in the Solicitation;

(6) A detailed estimate of the total Project Costs together with a description of the methodology and assumptions used;

(7) A detailed description of the engineering and design contractor(s), construction contractor(s), and equipment supplier(s);

(8) The construction schedules for the proposed project, including major activity and cost milestones;

(9) A description of the material terms and conditions of the development and construction contracts to include the performance guarantees, performance bonds, liquidated damages provisions, and equipment warranties;

(11) A description of the management plan of operations to be employed in carrying out the proposed project, and information concerning the management experience of each officer or key person associated with the proposed project;

(12) A detailed description of the proposed project decommissioning, deconstruction, and disposal plan, and the anticipated costs associated therewith;

(13) An analysis of the market for any product (including but not limited to electricity and chemicals) to be produced by, or services to be provided by, the proposed project, including relevant economics justifying the analysis, and copies of

(i) Any contracts for the sale of such products or the provision of such services, or

(ii) Any other assurance of the revenues to be generated from sale of such products or provision of such services;

(14) A detailed description of the overall financial plan for the proposed project, including all sources and uses of funding, equity and debt, and the liability of parties associated with the proposed project over the term of the Loan Guarantee Agreement;

(15) A copy of all material agreements, whether entered into or proposed, relevant to the investment, design, engineering, financing, construction, startup commissioning, shakedown, operations and maintenance of the proposed project;

(16) A copy of the financial closing checklist for the equity and debt to the extent available;

(17) The Applicant's business plan on which the proposed project is based and Applicant's financial model with respect to the proposed project for the proposed term of the Guaranteed Obligations, including, as applicable, pro forma income statements, balance sheets, and cash flows. All such information and data must include assumptions made in their preparation and the range of revenue, operating cost, and credit assumptions considered;

(18) Financial statements for the three immediately preceding fiscal years of the Applicant (or such shorter period as the Applicant has been in existence) that have been audited by an independent certified public accounting firm, including all associated certifications, notes and letters to management, as well as interim financial statements and notes for the current fiscal year for the Applicant and all other Persons the credit of which is material to the success of the transactions described in the Application;

(19) A copy of all legal opinions, and other material reports, analyses, and reviews related to the proposed project that have been delivered prior to submission of any part of the Application;

(20) An independent engineering report prepared by an engineer with experience in the industry and familiarity with similar projects. The report should address the proposed project's siting and permitting arrangements, engineering and design, contractual requirements, environmental compliance, testing, commissioning and operations, and maintenance;

(21) A credit history of the Applicant and each Project Sponsor;

(22) A preliminary credit assessment for the proposed project without a loan guarantee from a nationally recognized rating agency for projects where the estimated total Project Costs exceed $25 million. For proposed projects where the total estimated Project Costs are $25 million or less and where conditions justify, in the sole discretion of the Secretary, DOE may require such an assessment;

(23) A list showing the status of and estimated completion date of Applicant's required applications for federal, state, and local permits, authorizations or approvals to site, construct, and operate the proposed project;

(24) A report containing an analysis of the potential environmental impacts of the proposed project that will enable DOE to—

(i) Assess whether the proposed project will comply with all applicable environmental requirements; and

(ii) Undertake and complete any necessary reviews under the National Environmental Policy Act of 1969;

(25) A listing and description of the assets of or to be utilized for the benefit of the proposed project, and of any other asset that will serve as collateral pledged in respect of the Guaranteed Obligations, including appropriate data as to the value of such assets and the useful life of any physical assets. With respect to real property assets listed, an appraisal that is consistent with the “Uniform Standards of Professional Appraisal Practice,” promulgated by the Appraisal Standards Board of the Appraisal Foundation, and performed by licensed or certified appraisers, is required;

(26) An analysis demonstrating that, at the time of the Application, there is a reasonable prospect that Borrower will be able to repay the Guaranteed Obligations (including interest) according to their terms, and a complete description of the operational and financial assumptions and methodologies on which this demonstration is based; and

(27) If proposed project assets or facilities are or will be jointly owned by the Applicant and one or more other Persons or entities, each of which owns an undivided ownership interest in such proposed project assets or facilities, a description of the Applicant's rights and obligations in respect of its undivided ownership interest in such proposed project assets or facilities.

(d) During the Application evaluation process pursuant to § 609.5 of this part, DOE may request additional information, potentially including a preliminary credit rating or credit assessment, with respect to the proposed project.

(e) DOE will not consider any part of any Application or the Application as a whole complete unless the Application Fee (or the required portion of the Application Fee related to a particular part of the Application) has been paid. An Application Fee paid in connection with one Application is not transferable to another Application. Except in the discretion of DOE, no portion of the Application Fee is refundable;

(f) DOE has no obligation to evaluate an Application that is not complete, and may proceed with such evaluation, or a partial evaluation, only in its discretion.

(g) Unless an Applicant requests an extension and such an extension is granted by DOE in its discretion, an Application may be rejected if it is not complete within four years from the date of submission (or date of submission of the first part thereof, in the case of Applications made in more than one part).

(h) Upon making a determination to engage independent consultants or outside counsel with respect to an Application, DOE will proceed to evaluate and process such Application only following execution by an Applicant or Project Sponsor, as appropriate, of an agreement satisfactory to DOE to pay the fees and expenses charged by the independent consultants and outside legal counsel.

(a) In reviewing completed Applications, and in prioritizing and selecting those as to which a Term Sheet should be offered, DOE will apply the criteria set forth in the Act, any applicable Solicitation, and this part. Applications will be considered in a competitive process, i.e. each Application will be evaluated against other Applications responsive to the Solicitation. .DOE may compare an Application to Applications related to other projects that DOE reasonably believes may become the subject of an Application. Applications will be denied if:

(1) The proposed project is not an Eligible Project;

(2) The applicable technology is not ready to be deployed commercially in the United States, cannot yield a commercially viable product or service in the use proposed in the Application, does not have the potential to be deployed in other commercial projects in the United States, or is not or will not be available for further commercial use in the United States;

(3) The Person proposed to issue the loan or purchase other debt obligations constituting the Guaranteed Obligations is not an Eligible Lender;

(4) The proposed project is for demonstration, research, or development;

(5) Significant Equity for the proposed project will not be provided by the date of issuance of the Guaranteed Obligations, or such later time as DOE in its discretion may determine; or

(6) The proposed project does not present a reasonable prospect of repayment of the Guaranteed Obligations.

(b) If an Application has not been denied pursuant to § 609.5(a), DOE will evaluate the proposed Project based on the criteria set forth in the Act, any applicable Solicitation and the following:

(1) To what measurable extent the proposed project avoids, reduces, or sequesters air pollutants or anthropogenic emissions of greenhouses gases, or contributes to the avoidance, reduction or sequestration of air pollutants or anthropogenic emissions of greenhouse gases;

(2) To what extent the technology to be deployed in the proposed project—

(i) Is ready to be deployed commercially in the United States, can be replicated, yields a commercially viable product or service in the use proposed in the proposed project, has potential to be deployed in other commercial projects in the United States, and is or will be available for further commercial use in the United States; and

(ii) Constitutes an important improvement in technology, as compared to available Commercial Technologies, used to avoid, reduce or sequester air pollutants or anthropogenic emissions of greenhouse gases;

(3) To what extent the Applicant has a plan to advance or assist in the advancement of that technology into the commercial marketplace in the United States;

(4) The extent to which the level of proposed support in the Application is consistent with a reasonable prospect of repayment of the Guaranteed Obligations by considering, among other factors:

(i) The extent to which the requested amount of the loan guarantee, the requested amount of Guaranteed Obligations and, if applicable, the expected amount of any other financing or credit arrangements, are reasonable relative to the nature and scope of the proposed project;

(ii) The total amount and nature of the Project Costs and the extent to which Project Costs are to be funded by Guaranteed Obligations; and

(iii) The feasibility of the proposed project and likelihood that it will produce sufficient revenues to service its debt obligations over the life of the loan guarantee and assure timely repayment of Guaranteed Obligations;

(5) The likelihood that the proposed project will be ready for full commercial operations in the time frame stated in the Application;

(6) The amount of Equity committed and to be committed to the proposed project by the Borrower, the Project Sponsor, and other Persons;

(7) Whether there is sufficient evidence that the Borrower will diligently implement the proposed project, including initiating and completing the proposed project in a timely manner;

(8) Whether and to what extent the Applicant will rely upon other Federal and non-Federal Government assistance such as grants, tax credits, or other loan guarantees to support the financing, construction, and operation of the proposed project and how such assistance will impact the proposed project;

(9) The levels of safeguards provided to the Federal Government in the event of default through collateral, warranties, and other assurance of repayment described in the Application, including the nature of any anticipated intercreditor arrangements;

(10) The Applicant's, or the relevant contractor's, capacity and expertise to operate the proposed project successfully, based on factors such as financial soundness, management organization, and the nature and extent of corporate and individual experience;

(11) The ability of the proposed Borrower to ensure that the proposed project will comply with all applicable laws and regulations, including all applicable environmental statutes and regulations;

(12) The levels of market, regulatory, legal, financial, technological, and other risks associated with the proposed project and their appropriateness for a loan guarantee provided by DOE;

(13) Whether the Application contains sufficient information, including a detailed description of the nature and scope of the proposed project and the nature, scope, and risk coverage of the loan guarantee sought to enable DOE to perform a thorough assessment of the proposed project; and

(14) Such other criteria that DOE deems relevant in evaluating the merits of an Application.

(c) After DOE completes its review and evaluation of a proposed project pursuant to § 609.5(b) and this part, DOE will notify the Applicant in writing of its determination whether to proceed with due diligence and negotiation of a Term Sheet in accordance with § 609.6 of this part. DOE will proceed only if it determines that the proposed project is highly qualified and suitable for a Guarantee. Upon written confirmation from the Applicant that it desires to proceed, DOE and the Applicant will commence negotiations.

(d) A determination by DOE not to proceed with a proposed project following evaluation pursuant to § 609.5(b) shall be final and non-appealable, but shall not prejudice the Applicant or other affected Persons from applying for a Guarantee in respect of a different proposed project pursuant to another, separate Application.

§ 609.6Term sheets and conditional commitments.

(a) DOE, after negotiation of a Term Sheet with an Applicant, may offer such Term Sheet to an Applicant or such other Person that is an affiliate of the Applicant and that is acceptable to DOE. DOE's offer of a Term Sheet shall be in writing and signed by the Contracting Officer. DOE's negotiation of a Term Sheet imposes no obligation on the Secretary to offer a Term Sheet to the Applicant.

(b) DOE shall terminate its negotiations of a Term Sheet if it has not offered a Term Sheet in respect of an Eligible Project within four years after the date of the written notification set forth in § 609.5(c) of this part, unless extended in writing in the discretion of the Contracting Officer.

(c) If and when the offeree specified in a Term Sheet satisfies all terms and conditions for acceptance of the Term Sheet, including written acceptance thereof and payment of all fees specified in § 609.11(f) and therein to be paid at or prior to acceptance of the Term Sheet, the Term Sheet shall become a Conditional Commitment. Each Conditional Commitment shall include an expiration date no more than two years from the date it is issued, unless extended in writing in the discretion of the Contracting Officer. When and if all of the terms and conditions specified in the Conditional Commitment have been met, DOE and the Applicant may enter into a Loan Guarantee Agreement.

(d) If, subsequent to execution of a Conditional Commitment, the financing arrangements of the Borrower, or in respect of an Eligible Project, change from those described in the Conditional Commitment, the Applicant shall promptly provide updated financing information in writing to DOE. All such updated information shall be deemed to be information submitted in connection with an Application and shall be subject to § 609.4(b). Based on such updated information, DOE may take one or more of the following actions:

(1) Determine that such changes are not material to the Borrower, the Eligible Project or DOE;

(2) Amend the Conditional Commitment accordingly;

(3) Postpone the expected closing date of the associated Loan Guarantee Agreement; or

(4) Terminate the Conditional Commitment.

§ 609.7Closing on the loan guarantee agreement.

(a) Subsequent to entering into a Conditional Commitment with an Applicant, DOE, after consultation with the Applicant, will set a closing date for execution of a Loan Guarantee Agreement.

(b) Prior to or on the closing date of a Loan Guarantee Agreement, DOE will ensure that:

(1) One of the following has occurred:

(i) An appropriation for the Credit Subsidy Cost has been made;

(ii) The Secretary has received from the Borrower payment in full for the Credit Subsidy Cost and deposited the payment into the Treasury; or

(iii) A combination of one or more appropriations under paragraph (b)(1)(i) of this section and one or more payments from the Borrower under paragraph (b)(1)(ii) of this section has been made that is equal to the Credit Subsidy Cost;

(2) Pursuant to section 1702(h) of the Act, DOE has received from the Applicant the remainder of the Facility Fee referred to in § 609.11(b) of this part;

(3) OMB has reviewed and approved DOE's calculation of the Credit Subsidy Cost of the Guarantee;

(4) The Department of the Treasury has been consulted as to the terms and conditions of the Loan Guarantee Agreement;

(5) The Loan Guarantee Agreement and related documents contain all terms and conditions DOE deems reasonable and necessary to protect the interest of the United States;

(6) Each holder of the Guaranteed Obligations is an Eligible Lender, and the servicer of the Guaranteed Obligations meets the servicing performance requirements of § 609.9(b) of this part;

(7) DOE has determined the principal amount of the Guaranteed Obligations expected to be issued in respect of the Eligible Project, as estimated at the time of issuance, will not exceed 80 percent of the Project Costs of the Eligible Project;

(8) All conditions precedent specified in the Conditional Commitment are either satisfied or waived by the Contracting Officer and all other applicable contractual, statutory, and regulatory requirements have been satisfied or waived by the Contracting Officer. If the counterparty to the Conditional Commitment has not satisfied all such terms and conditions on or prior to the closing date of the Loan Guarantee Agreement, the Secretary may, in his discretion, set a new closing date, or terminate the Conditional Commitment; and

(9) Where the total Project Costs for an Eligible Project are projected to exceed $25 million, the Applicant must provide a credit rating from a nationally recognized rating agency reflecting the revised Conditional Commitment for the project without a Federal guarantee. Where total Project Costs are projected to be $25 million or less, the Secretary may, on a case-by-case basis, require a credit rating. If a credit rating is required, an updated rating must be provided to the Secretary not later than 30 days prior to closing.

§ 609.8Loan guarantee agreement.

(a) Only a Loan Guarantee Agreement executed by the Contracting Officer can obligate DOE to issue a Guarantee in respect of Guaranteed Obligations.

(b) DOE is not bound by oral representations.

(c) Each Loan Guarantee Agreement shall contain the following requirements and conditions, and shall not be executed until the Contracting Officer determines that the following requirements and conditions are satisfied:

(1) The Federal Financing Bank shall be the only Eligible Lender in transactions where DOE guarantees 100 percent (but not less than 100 percent) of the principal and interest of the Guaranteed Obligations issued under a Loan Guarantee Agreement.

(i) Where DOE guarantees more than 90 percent of the Guaranteed Obligation, the guaranteed portion cannot be separated from or “stripped” from the non-guaranteed portion of the Guaranteed Obligation if the loan is participated, syndicated or otherwise resold in the secondary market; and

(ii) Where DOE guarantees 90 percent or less of the Guaranteed Obligation, the guaranteed portion may be separated from or “stripped” from the non-guaranteed portion of the Guaranteed Obligation, if the loan is participated, syndicated or otherwise resold in the secondary debt market;

(2) The Borrower shall be obligated to make full repayment of the principal and interest on the Guaranteed Obligations and other debt of a Borrower over a period of up to the lesser of 30 years or 90 percent of the projected useful life of the Eligible Project's major physical assets, as calculated in accordance with U.S. generally accepted accounting principles and practices. The non-guaranteed portion (if any) of any Guaranteed Obligations must be repaid pro rata, and on the same amortization schedule, with the guaranteed portion.

(3) If any financing or credit arrangement of the Borrower or relating to the Eligible Project, other than the Guaranteed Obligations, has an amortization period shorter than that of the Guaranteed Obligations, DOE shall have determined that the resulting financing structure allocates to DOE a reasonably proportionate share of the default risk, in light of:

(i) DOE's share of the total debt financing of the Borrower,

(ii) Risk allocation among the credit providers to the Borrower, and

(iii) Internal and external credit enhancements.

(4) Consistent with the requirements of section 149(b) of the Internal Revenue Code, the Guaranteed Obligations shall not finance, directly, indirectly, or through effective subordination within the meaning of section II.A of OMB Circular No. A-129 (January 2013), tax-exempt debt obligations. Guaranteed Obligations and any tax-exempt debt obligations payable directly or indirectly from the revenues of the Borrower or other resources of the Borrower must be repaid using separate, dedicated revenue streams or other separate sources of repayment, and must be separately collateralized. The terms of the Guaranteed Obligations, such as, for example, grace periods, repayment schedules, and availability of deferrals, must not create effective subordination. The Guaranteed Obligations shall not be used as collateral to secure tax-exempt debt obligations or guarantee loans funded by tax-exempt debt obligations;

(5) The principal amount of the Guaranteed Obligations, when combined with funds from other sources committed and available to the Borrower, shall be sufficient to pay for expected Project Costs (including adequate contingency amounts), the applicable items specified in § 609.10(b) of this part, and otherwise to carry out the Eligible Project;

(6) There shall be a reasonable prospect of repayment by the Borrower of the principal of and interest on the Guaranteed Obligations and all of its other debt obligations;

(7) The Borrower shall pledge collateral or surety determined by DOE to be necessary to secure the repayment of the Guaranteed Obligations. Such collateral or security may include Eligible Project assets and assets not related to the Eligible Project;

(8) The Loan Guarantee Agreement and related documents shall include detailed terms and conditions that DOE deems necessary and appropriate to protect the interests of the United States in the case of default, including ensuring availability of all relevant intellectual property rights, technical data including software, and technology necessary for DOE or any Person or entity selected by DOE, to complete, operate, convey, and dispose of the defaulted Borrower or the Eligible Project;

(9) The Guaranteed Obligations shall not be subordinate to other financing. Guaranteed Obligations are not subordinate to other financing if the lien on property securing the Guaranteed Obligations, together with liens that are pari passu with such lien, if any, take priority or precedence over other charges or encumbrances upon the same property and must be satisfied before such other charges are entitled to participate in proceeds of the property's sale. In DOE's discretion, Guaranteed Obligations may share a lien position with other financing;

(10) There is satisfactory evidence that the Borrower will diligently pursue the Eligible Project and is willing, competent, and capable of performing its obligations under the Loan Guarantee Agreement and the loan documentation relating to its other debt obligations;

(11) The Borrower shall have paid all fees and expenses due to DOE or the U.S. Government, including such amount of the Credit Subsidy Cost as may be due and payable from the Borrower pursuant to the Conditional Commitment, upon execution of the Loan Guarantee Agreement;

(12) The Borrower, any Eligible Lender, and each other relevant party shall take, and be obligated to continue to take, those actions necessary to perfect and maintain liens on collateral pledged in respect of the Guaranteed Obligations;

(13) DOE or its representatives shall have access to the offices of the Borrower and the Eligible Project site at all reasonable times in order to—

(i) Monitor the performance by the Borrower of its obligations under the Loan Guarantee Agreement, and

(ii) Performance of the Eligible Project;

(14) DOE and Borrower have reached an agreement regarding the information that will be made available to DOE and the information that will be made publicly available;

(15) The Borrower shall have filed applications for or obtained any required regulatory approvals for the Eligible Project and is in compliance, or promptly will be in compliance, where appropriate, with all Federal, state, and local regulatory requirements;

(16) The Borrower shall have no delinquent Federal debt;

(17) The Project Sponsors have made or will make a significant Equity investment in the Borrower or the Eligible Project, and will maintain control of the Borrower or the Eligible Project as agreed in the LGA; and

(18) The Loan Guarantee Agreement and related agreements shall include such other terms and conditions as DOE deems necessary or appropriate to protect the interests of the United States.

(d) The Loan Guarantee Agreement shall provide that, in the event of a default by the Borrower:

(1) Interest on the Guaranteed Obligations shall accrue at the rate stated in the Loan Guarantee Agreement or the Loan Agreement, until DOE makes full payment of the defaulted Guaranteed Obligations and, except when such Guaranteed Obligations are funded through the Federal Financing Bank, DOE shall not be required to pay any premium, default penalties, or prepayment penalties; and

(2) The holder of collateral pledged in respect of the Guaranteed Obligations shall be obligated to take such actions as DOE may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery.

(e)(1) An Eligible Lender or other Holder may sell, assign or transfer a Guaranteed Obligation to another Eligible Lender that meets the requirements of § 609.9 of this part. Such latter Eligible Lender shall be required to assume all servicing, monitoring and reporting requirements as provided in the Loan Guarantee Agreement. Any transfer of the servicing, monitoring, and reporting functions shall be subject to the prior written approval of DOE.

(2) The Secretary, or the Secretary's designee or contractual agent, for the purpose of identifying Holders with the right to receive payment under the Guaranteed Obligations, shall include in the Loan Guarantee Agreement or related documents a procedure for tracking and identifying Holders of Guaranteed Obligations. Any contractual agent approved by the Secretary to perform this function may transfer or assign this responsibility only with the Secretary's prior written approval.

(f) Each Loan Guarantee Agreement shall require the Borrower to make representations and warranties, agree to covenants, and satisfy conditions precedent to closing and to each disbursement that, in each case, relate to its compliance with the Davis-Bacon Act and the Cargo Preference Act.

(g) The Applicant, the Borrower or the Project Sponsor must estimate, calculate, record, and provide to DOE any time DOE requests such information and at the times provided in the Loan Guarantee Agreement all costs incurred in the design, engineering, financing, construction, startup, commissioning and shakedown of the Eligible Project in accordance with generally accepted accounting principles and practices.

§ 609.9Lender servicing requirements.

(a) When reviewing and evaluating a proposed Eligible Project, all Eligible Lenders (other than the Federal Financing Bank) shall at all times exercise the level of care and diligence that a reasonable and prudent lender would exercise when reviewing, evaluating and disbursing a loan made by it without a Federal guarantee.

(b) Loan servicing duties shall be performed by an Eligible Lender, DOE, or another qualified loan servicer approved by DOE. When performing its servicing duties, the loan servicer shall at all times exercise the level of care and diligence that a reasonable and prudent lender would exercise when servicing a loan made without a Federal guarantee, including:

(1) During the construction period, monitoring the satisfaction of all of the conditions precedent to all loan disbursements, as provided in the Loan Guarantee Agreement, Loan Agreement or related documents;

(2) During the operational phase, monitoring and servicing the Guaranteed Obligations and collection of the outstanding principal and accrued interest as well as undertaking to ensure that the collateral package securing the Guaranteed Obligations remains uncompromised; and

(3) Until the Guaranteed Obligation has been repaid, providing annual or more frequent financial and other reports on the status and condition of the Guaranteed Obligations and the Eligible Project, and promptly notifying DOE if it becomes aware of any problems or irregularities concerning the Eligible Project or the ability of the Borrower to make payment on the Guaranteed Obligations or its other debt obligations.

§ 609.10Project costs.

(a) Project Costs include:

(1) Costs of acquisition, lease, or rental of real property, including engineering fees, surveys, title insurance, recording fees, and legal fees incurred in connection with land acquisition, lease or rental, site improvements, site restoration, access roads, and fencing;

(2) Costs of engineering, architectural, legal and bond fees, and insurance paid in connection with construction of the facility;

(3) Costs of equipment purchases, including a reasonable reserve of spare parts to the extent required;

(4) Costs to provide facilities and services related to safety and environmental protection;

(5) Costs of financial, legal, and other professional services, including services necessary to obtain required licenses and permits and to prepare environmental reports and data;

(6) Costs of issuing Eligible Project debt, such as fees, transaction, and costs referred to in § 609.10(a)(5), and other customary charges imposed by Eligible Lenders;

(7) Costs of necessary and appropriate insurance and bonds of all types including letters of credit and any collateral required therefor;

(ii) Not intended or available for any cost referred to in § 609.10(b),

costs of funding any reserve fund, including without limitation, a debt service reserve, a maintenance reserve, and a contingency reserve for cost overruns during construction; provided that proceeds of a Guaranteed Loan deposited to any reserve fund shall not be removed from such fund except to pay Project Costs, to pay principal of the Guaranteed Loan, or otherwise to be used as provided in the Loan Guarantee Agreement;

(11) Capitalized interest necessary to meet market requirements and other carrying costs during construction; and

(12) Other necessary and reasonable costs.

(b) Project Costs do not include:

(1) Fees and commissions charged to Borrower, including finder's fees, for obtaining Federal or other funds;

(4) Dividends and profit sharing to stockholders, employees, and officers;

(5) Research, development, and demonstration costs of readying an innovative technology for employment in a commercial project;

(6) Costs that are excessive or are not directly required to carry out the Eligible Project, as determined by DOE;

(7) Expenses incurred after startup, commissioning, and shakedown before the facility, or, in DOE's discretion, any portion of the facility, has been placed in service;

(8) Borrower-paid Credit Subsidy Costs, the Administrative Cost of Issuing a Loan Guarantee, and any other fee collected by DOE; and

(9) Operating costs.

§ 609.11Fees and charges.

(a) Unless explicitly authorized by statute, no funds obtained from the Federal Government, or from a loan or other instrument guaranteed by the Federal Government, may be used to pay for the Credit Subsidy Cost, the Application Fee, the Facility Fee, the Guarantee Fee, the maintenance fee and any other fees charged by or paid to DOE relating to the Act or any Guarantee thereunder.

(b) DOE may charge Applicants a non-refundable Facility Fee, with a portion being payable on or prior to the date on which the Applicant executes the Commitment Letter and the remainder being payable on or prior to the closing date for the Loan Guarantee Agreement.

(c) In order to encourage and supplement private lending activity DOE may collect from Borrowers for deposit in the United States Treasury a non-refundable Risk-Based Charge which, together with the interest rate on the Guaranteed Obligation that LPO determines to be appropriate, will take into account the prevailing rate of interest in the private sector for similar loans and risks. The Risk-Based Charge shall be paid at such times and in such manner as may be determined by DOE, but no less frequently than once each year, commencing with payment of a pro-rated payment on the date the Guarantee is issued. The amount of the Risk-Based Charge will be specified in the Loan Guarantee Agreement.

(d) DOE may collect a maintenance fee to cover DOE's administrative expenses, other than extraordinary expenses, incurred in servicing and monitoring a Loan Guarantee Agreement. The maintenance fee shall accrue from the date of execution of the Loan Guarantee Agreement through the date of payment in full of the related Guaranteed Obligations. If DOE determines to collect a maintenance fee, it shall be paid by the Borrower each year (or portion thereof) in advance in the amount specified in the applicable Loan Guarantee Agreement.

(e) In the event a Borrower or an Eligible Project experiences difficulty relating to technical, financial, or legal matters or other events (e.g., engineering failure or financial workouts), the Borrower shall be liable as follows:

(1) If such difficulty requires DOE to incur time or expenses beyond those customarily expended to monitor and administer performing loans, DOE may collect an extraordinary expenses fee from the Borrower that will reimburse DOE for such time and expenses, as determined by DOE; and

(2) For all fees and expenses of DOE's independent consultants and outside counsel, to the extent that such fees and expenses are elected to be paid by DOE notwithstanding the provisions of paragraphs (f) and (g) of this section.

(f) Each Applicant, Borrower or Project Sponsor, as applicable, shall be responsible for the payment of all fees and expenses charged by DOE's independent consultants and outside legal counsel in connection with an Application, Conditional Commitment or Loan Guarantee Agreement, as applicable. Upon making a determination to engage independent consultants or outside counsel with respect to an Application, DOE will proceed to evaluate and process such Application only following execution by an Applicant or Project Sponsor, as appropriate, of an agreement satisfactory to DOE to pay the fees and expenses charged by the independent consultants and outside legal counsel. Appropriate provisions regarding payment of such fees and expenses shall also be included in each Term Sheet and Loan Guaranty Agreement or, upon a determination by DOE, in other appropriate agreements.

(g) Notwithstanding payment by Applicant, Borrower or Project Sponsor, all services rendered by an independent consultant or outside legal counsel to DOE in connection with an Application, Conditional Commitment or Loan Guarantee Agreement shall be solely for the benefit of DOE (and such other creditors as DOE may agree in writing). DOE may require, in its discretion, the payment of an advance retainer to such independent consultants or outside legal counsel as security for the collection of the fees and expenses charged by the independent consultants and outside legal counsel. In the event an Applicant, Borrower or Project Sponsor fails to comply with the provisions of such payment agreement, DOE in its discretion, may stop work on or terminate an Application, a Conditional Commitment or a Loan Guarantee Agreement, or may take such other remedial measures in its discretion as it deems appropriate.

(h) DOE shall not be financially liable under any circumstances to any independent consultant or outside counsel for services rendered in connection with an Application, Conditional Commitment or Loan Guarantee Agreement except to the extent DOE has previously entered into an express written agreement to pay for such services.

§ 609.12Full faith and credit and incontestability.

The full faith and credit of the United States is pledged to the payment of principal and interest of Guaranteed Obligations pursuant to Guarantees issued in accordance with the Act and this Part. The issuance by DOE of a Guarantee shall be conclusive evidence that it has been properly obtained; that the underlying loan qualified for such Guarantee; and that, but for fraud or material misrepresentation by the Holder, such Guarantee shall be legal, valid, binding and enforceable against DOE in accordance with its terms.

§ 609.13Default, demand, payment, and foreclosure on collateral.

(a) If a Borrower defaults in making a required payment of principal or interest on a Guaranteed Obligation and such default has not been cured within the applicable grace period, the Holder may make written demand for payment upon the Secretary in accordance with the terms of the applicable Guarantee. If a Borrower defaults in making a required payment of principal or interest on a Guaranteed Obligation and such default has not been cured within the applicable grace period, the Secretary shall notify the Attorney General.

(b) Subject to the terms of the applicable Guarantee, the Secretary shall make payment within 60 days after receipt of written demand for payment from the Holder, provided that the demand for payment complies in all respects with the terms of the applicable Guarantee. Interest shall accrue to the Holder at the rate stated in the promissory note evidencing the Guaranteed Obligation, without giving effect to the Borrower's default in making a required payment of principal or interest on the applicable Guarantee Obligation or any other default by the Borrower, until the Guaranteed Obligation has been fully paid by DOE. Payment by the Secretary on the applicable Guarantee does not change Borrower's obligations under the promissory note evidencing the Guaranteed Obligation, Loan Guarantee Agreement, Loan Agreement or related documents, including an obligation to pay default interest.

(c) Following payment by the Secretary pursuant to the applicable Guarantee, upon demand by DOE, the Holder shall transfer and assign to the Secretary (or his designee or agent) the promissory note evidencing the Guaranteed Obligation, all rights and interests of the Holder in the Guaranteed Obligation, and all rights and interests of the Holder in respect of the Guaranteed Obligation, except to the extent that the Secretary determines that such promissory note or any of such rights and interests shall not be transferred and assigned to the Secretary. Such transfer and assignment shall include, without limitation, all of the liens, security and collateral rights of the Holder (or his designee or agent) in respect of the Guaranteed Obligation.

(d) Following payment by the Secretary pursuant to a Guarantee or other default of a Guaranteed Obligation, the Secretary is authorized to protect and foreclose on the collateral, take action to recover costs incurred by, and all amounts owed to, the United States as a result of the defaulted Guarantee Obligation, and take such other action necessary or appropriate to protect the interests of the United States. In respect of any such authorized actions that involve a judicial proceeding or other judicial action, the Secretary shall act through the Attorney General. The foregoing provisions of this paragraph shall not relieve the Secretary from its obligations pursuant to any applicable Intercreditor Agreement. Nothing in this paragraph shall limit the Secretary from exercising any rights or remedies pursuant to the terms of the Loan Guarantee Agreement.

(e) The cash proceeds received as a result of any foreclosure on the collateral or other action, shall be distributed in accordance with the Loan Guarantee Agreement (subject to any applicable Intercreditor Agreement).

(f) The Loan Guarantee Agreement shall provide that cash proceeds received by the Secretary (or his designee or agent) as a result of any foreclosure on the collateral or other action shall be applied in the following order of priority:

(1) Toward the pro rata payment of any costs and expenses (including unpaid fees, fees and expenses of counsel, contractors and agents, and liabilities and advances made or incurred) of the Secretary, the Attorney General, the Holder, a collateral agent or other responsible person of any of them (solely in their individual capacities as such and not on behalf of or for the benefit of their principals), incurred in connection with any authorized action following payment by the Secretary pursuant to a Guarantee or other default of a Guaranteed Obligation, or as otherwise permitted under the Loan Agreement or Loan Guarantee Agreement.

(2) To pay all accrued and unpaid fees due and payable to the Secretary, the Attorney General, the Holder, a collateral agent or other responsible person of any of them on a pro rata basis in respect of the Guaranteed Obligation;

(3) To pay all accrued and unpaid interest due and payable to the Secretary, the Attorney General, the Holder, a collateral agent or other responsible person of any of them on a pro rata basis in respect of the Guaranteed Obligation;

(4) To pay all unpaid principal of the Guaranteed Obligation;

(5) To pay all other obligations of the Borrower under the Loan Guarantee Agreement, the Loan Agreement and related documents that are remaining after giving effect to the preceding provisions and are then due and payable; and

(6) To pay to the Borrower, or its successors and assigns, or as a court of competent jurisdiction may direct, any cash proceeds then remaining following the application of all payment described above.

(g) No action taken by the Holder or its agent or designee in respect of any collateral will affect the rights of any person, including the Secretary, having an interest in the Guaranteed Obligations or other debt obligations, to pursue, jointly or severally, legal action against the Borrower or other liable persons, for any amounts owing in respect of the Guaranteed Obligation or other applicable debt obligations.

(h) In the event that the Secretary considers it necessary or desirable to protect or further the interest of the United States in connection exercise of rights as a lien holder or recovery of deficiencies due under the Guaranteed Obligation, the Secretary may take such action as he determines to be appropriate under the circumstances.

(i) Nothing in this part precludes, nor shall any provision of this part be construed to preclude, the Secretary from purchasing any collateral or Holder's or other person's interest in the Eligible Project upon foreclosure of the collateral.

(j) Nothing in this part precludes, nor shall any provision of this part be construed to preclude, forbearance by any Holder with the consent of the Secretary for the benefit of the Borrower and the United States.

(k) The Holder and the Secretary may agree to a formal or informal plan of reorganization in respect of the Borrower, to include a restructuring of the Guaranteed Obligation and other applicable debt of the Borrower on such terms and conditions as the Secretary determines are in the best interest of the United States.

§ 609.14Preservation of collateral.

(a) If the Secretary exercises his right under the Loan Guarantee Agreement to require the holder of pledged collateral to take such actions as the Secretary (subject to any applicable Intercreditor Agreement) may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery from the collateral, the Secretary shall, subject to compliance with the Antideficiency Act, 31 U.S.C. 1341 et seq., reimburse the holder of such collateral for reasonable and appropriate expenses incurred in taking actions required by the Secretary (unless otherwise provided in applicable agreements). Except as provided in § 609.13, no party may waive or relinquish, without the consent of the Secretary, any such collateral to which the United States would be subrogated upon payment under the Loan Guarantee Agreement.

(b) In the event of a default, the Secretary may enter into such contracts as he determines are required or appropriate, taking into account the term of any applicable Intercreditor Agreement, to care for, preserve, protect or maintain collateral pledged in respect of Guaranteed Obligations. The cost of such contracts may be charged to the Borrower.

(a) The Eligible Lender, or DOE in conjunction with the Federal Financing Bank where loans are funded by the Federal Financing Bank or other Holder or other party servicing the Guaranteed Obligations, as applicable, and the Borrower, shall keep such records concerning the Eligible Project as are necessary, including the Application, Term Sheet, Conditional Commitment, Loan Guarantee Agreement, Credit Agreement, mortgage, note, disbursement requests and supporting documentation, financial statements, audit reports of independent accounting firms, lists of all Eligible Project assets and non-Eligible Project assets pledged in respect of the Guaranteed Obligations, all off-take and other revenue producing agreements, documentation for all Eligible Project indebtedness, income tax returns, technology agreements, documentation for all permits and regulatory approvals and all other documents and records relating to the Borrower or the Eligible Project, as determined by the Secretary, to facilitate an effective audit and performance evaluation of the Eligible Project; and

(b) The Secretary and the Comptroller General, or their duly authorized representatives, shall have access, for the purpose of audit and examination, to any pertinent books, documents, papers and records of the Borrower, Eligible Lender or DOE or other Holder or other party servicing the Guaranteed Obligation, as applicable. Such inspection may be made during regular office hours of the Borrower, Eligible Lender or DOE or other Holder, or other party servicing the Eligible Project and the Guaranteed Obligations, as applicable, or at any other time mutually convenient.

§ 609.16Deviations.

(a) To the extent that the requirements under this part are not specified by the Act or other applicable statutes, DOE may authorize deviations from the requirements of this part upon:

(1) Either (A) receipt from the Applicant, Borrower or Project Sponsor, as applicable, of—

(i) A written request that the Secretary deviate from one or more requirements, and

(ii) A supporting statement briefly describing one or more justifications for such deviation, or

(iii)(B) a determination by the Secretary in his discretion to undertake a deviation;

(2) A finding by the Secretary that such deviation supports program objectives and the special circumstances stated in the request make such deviation clearly in the best interest of the Government; and

(3) If the waiver would constitute a substantial change in the financial terms of the Loan Guarantee Agreement and related documents, consultation by DOE with OMB and the Secretary of the Treasury.

(b) If a deviation under this section results in an increase in the applicable Credit Subsidy Cost, such increase shall be funded either by additional fees paid by or on behalf of the Borrower or, if an appropriation is available by means of an appropriations act. The Secretary has discretion to determine how the cost of a deviation is funded.

We propose to adopt a new airworthiness directive (AD) for certain A330-200 Freighter, -200 and -300 series airplanes; and Airbus Model A340-200, -300, -500, and -600 series airplanes. This proposed AD was prompted by reports of certain hydraulic reservoirs (HRs) becoming depressurized due to air leakage from the HR pressure relief valve (PRV). This proposed AD would require repetitive inspections of the hydraulic fluid levels and nitrogen gas pressure in the HR for each hydraulic circuit, and if necessary, adjustment of the fluid level(s) and nitrogen pressure in affected HRs. We are proposing this AD to detect and correct air leakage from the HR PRV, which could lead to the loss of one or more hydraulic systems, with the possible result of loss of control of the airplane.

DATES:

We must receive comments on this proposed AD by November 17, 2016.

ADDRESSES:

You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9117; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9117; Directorate Identifier 2016-NM-095-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0107, dated June 7, 2016, to correct an unsafe condition for certain Airbus Model A330-200 Freighter, -200 and -300 series airplanes; and Airbus Model A340-200, -300, -500, and -600 series airplanes. The MCAI states:

Some events of depressurisation of hydraulic reservoirs have been reported, due to air leakage from the HR PRV [hydraulic reservoir pressure relief valve]. The results of the investigations revealed that the air leakage was due to the extrusion of the O-ring seal from the HR PRV. This may have happened during HR maintenance, testing or during flight, if HR over-filling was performed, as a result of which hydraulic fluid could pass through the PRV, causing [the] PRV seal to migrate from its nominal position, leading to loss of HR pressurisation.

This condition, if not detected and corrected, could lead to the loss of one or more hydraulic systems, possibly resulting in loss of control of the aeroplane.

For the reasons described above, this [EASA] AD requires repetitive inspections of the HR fluid level of each hydraulic circuit and, depending on findings, accomplishment of applicable corrective action(s). This [EASA] AD also requires actions when maintenance action is accomplished on hydraulic reservoirs.

This [EASA] AD is considered as interim action and further [EASA] AD action may follow.

Required actions include repetitive inspection of the hydraulic fluid levels and nitrogen gas pressure in the HR for each hydraulic circuit, and if necessary, adjustment of the fluid level(s) and nitrogen pressure in affected HRs. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9117.

Related Service Information Under 1 CFR Part 51

We reviewed Airbus Alert Operators Transmission (AOT) A29L005-16, Revision 01, dated June 28, 2016. This service information describes procedures for inspecting hydraulic fluid levels and nitrogen gas pressure in certain HRs, and adjustment of the fluid level(s) and nitrogen pressure in affected HRs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

FAA's Determination and Requirements of This Proposed AD

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

Costs of Compliance

We estimate that this proposed AD affects 101 airplanes of U.S. registry.

We estimate the following costs to do any necessary servicing that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that might need this servicing:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This AD was prompted by reports of certain hydraulic reservoirs (HRs) becoming depressurized due to air leakage from the HR pressure relief valve (PRV). We are issuing this AD to detect and correct air leakage from the HR PRV, which could lead to the loss of one or more hydraulic systems, with the possible result of loss of control of the airplane.

(f) Compliance

Comply with this AD within the compliance times specified, unless already done.

(g) Inspect Fluid Level and Nitrogen Pressure in Hydraulic Reservoir

Within the compliance time defined in table 1 to paragraph (g) of this AD, as applicable, inspect the HR fluid level and nitrogen pressure of each hydraulic circuit in accordance with the instructions of paragraph 4.2.2.1 of Airbus Alert Operators Transmission (AOT) A29L005-16, Revision 01, dated June 28, 2016. Repeat the inspection thereafter at intervals not to exceed 1,600 flight hours.

Table 1 to Paragraph (g) of This AD—Initial Inspection Compliance TimeCompliance Time (A or B, whichever occurs later)ABefore accumulating 1,600 flight hours since first flight of the airplane.BWithin 1,000 flight hours or 3 months, whichever occurs first after the effective date of this AD.(h) Corrective Action

If, during any inspection required by paragraph (g) of this AD, any unacceptable pressure or fluid level is identified, before further flight, do the actions in paragraphs (h)(1) and (h)(2) of this AD, as applicable, for each unacceptable pressure or fluid level that is discovered. Accomplishment of these actions on an airplane does not constitute terminating action for the repetitive inspections as required by paragraph (g) of this AD for that airplane.

After accomplishing the revision required by paragraph (i) of this AD, no alternative actions (e.g., inspections) and intervals may be used unless the actions and intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (l)(1) of this AD.

(k) Credit for Previous Actions

This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using Airbus Alert Operators Transmission (AOT) A29L005-16, dated January 28, 2016.

(l) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1138; fax: 425-227-1149. Information may be emailed to: 9-ANM-116-AMOC-REQUESTS@faa.gov. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

(2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

(m) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2016-0107, dated June 7, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9117.

This notice announces the sixth meeting of the Advisory Committee on Accessible Air Transportation (ACCESS Advisory Committee).

DATES:

The sixth meeting of the ACCESS Advisory Committee will be held on October 12-14, 2016, from 9:00 a.m. to 5:00 p.m., Eastern Daylight Time.

ADDRESSES:

The meeting will be held at the Hilton Arlington, 950 N. Stafford St., Arlington, VA 22203. Attendance is open to the public up to the room's capacity of 150 attendees. Since space is limited, any member of the general public who plans to attend this meeting must notify the registration contact identified below no later than October 5, 2016.

FOR FURTHER INFORMATION CONTACT:

To register to attend the meeting, please contact Kyle Ilgenfritz (kilgenfritz@linkvisum.com; 703-442-4575 extension 128). For other information, please contact Livaughn Chapman or Vinh Nguyen, Office of the Aviation Enforcement and Proceedings, U.S. Department of Transportation, by email at livaughn.chapman@dot.gov or vinh.nguyen@dot.gov or by telephone at 202-366-9342.

SUPPLEMENTARY INFORMATION:

I. Sixth Public Meeting of the ACCESS Committee

The sixth meeting of the ACCESS Advisory Committee will be held on October 12-14, 2016, from 9:00 a.m. to 5:00 p.m., Eastern Daylight Time. The meeting will be held at the Hilton Arlington, 950 N. Stafford St., Arlington, VA 22203. At the meeting, the ACCESS Advisory Committee will continue to address whether to require accessible inflight entertainment (IFE) and strengthen accessibility requirements for other in-flight communications, whether to require an accessible lavatory on new single-aisle aircraft over a certain size, and whether to amend the definition of “service animals” that may accompany passengers with a disability on a flight. We expect to negotiate and vote on proposals to amend the Department's disability regulation regarding one or more of these issues. Prior to the meeting, the agenda will be available on the ACCESS Advisory Committee's Web site, www.transportation.gov/access-advisory-committee. Information on how to access advisory committee documents via the FDMC is contained in Section III, below.

The meeting will be open to the public. Attendance will be limited by the size of the meeting room (maximum 150 attendees). Because space is limited, we ask that any member of the public who plans to attend the meeting notify the registration contact, Kyle Ilgenfritz (kilgenfritz@linkvisum.com; 703-442-4575 extension 128) at Linkvisum, no later than October 5, 2016. At the discretion of the facilitator and the Committee and time permitting, members of the public are invited to contribute to the discussion and provide oral comments.

II. Submitting Written Comments

Members of the public may submit written comments on the topics to be considered during the meeting by October 6, 2016, to FDMC, Docket Number DOT-OST-2015-0246. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. DOT recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that DOT can contact you if there are questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, put the docket number, DOT-OST-2015-0246, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing.

III. Viewing Comments and Documents

To view comments and any documents mentioned in this preamble as being available in the docket, go to www.regulations.gov. Enter the docket number, DOT-OST-2015-0246, in the keyword box, and click “Search.” Next, click the link to “Open Docket Folder” and choose the document to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., E.T., Monday through Friday, except Federal holidays.

IV. ACCESS Advisory Committee Charter

The ACCESS Advisory Committee is established by charter in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2. Secretary of Transportation Anthony Foxx approved the ACCESS Advisory Committee charter on April 6, 2016. The committee's charter sets forth policies for the operation of the advisory committee and is available on the Department's Web site at www.transportation.gov/office-general-counsel/negotiated-regulations/charter.

V. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

VI. Federal Advisory Committee Act

Notice of this meeting is being provided in accordance with the Federal Advisory Committee Act and the General Services Administration regulations covering management of Federal advisory committees. See 41 CFR part 102-3.

The U.S. Copyright Office is proposing to amend its regulations governing registration, recordation, licensing, and other services that the Office provides. The amendments will improve the quality of the Office's regulations by updating cross-references to the Copyright Act and the Office's regulations, replacing outdated terminology, reflecting structural changes to the Office and its senior management, eliminating expired or obsolete provisions, and correcting nonsubstantive errors. While these amendments are intended to be technical in nature, out of an abundance of caution, the Office is publishing the proposed regulations for public comment.

DATES:

Written comments must be received no later than 11:59 p.m. Eastern Time on November 2, 2016.

ADDRESSES:

The Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office Web site at http://copyright.gov/rulemaking/2016technicalamendments/index.html. If electronic submission of comments is not feasible, please contact the Office using the contact information below for special instructions.

FOR FURTHER INFORMATION CONTACT:

Sarang V. Damle, General Counsel and Associate Register of Copyrights, sdam@loc.gov; Regan A. Smith, Associate General Counsel, resm@loc.gov; or Erik Bertin, Deputy Director of Registration Policy and Practice, ebertin@loc.gov. Each person can be reached by telephone at 202-707-8040.

SUPPLEMENTARY INFORMATION:

The U.S. Copyright Office (the “Office”) is proposing to make a series of technical amendments (the proposed “Rule”) that address certain inconsistencies and inaccuracies in parts 201, 202, 203, 204, 205, 210, 211, 212 and subchapter B of title 37 of the Code of Federal Regulations. Specifically, the proposed rule makes technical changes to regulations governing registration, recordation, and licensing. These changes include the removal of expired or obsolete provisions that no longer serve any purpose, such as regulations issued under the now-defunct Copyright Arbitration Royalty Panel system. It also proposes technical changes to the regulations for submitting requests under the Freedom of Information Act and the Privacy Act, the procedures for serving legal process on the Office, and the regulations governing the Office's general operations.

While the amendments are self-explanatory, for convenience, the Office has summarized them in seven categories below.

I. Reorganization of the U.S. Copyright Office

The Register of Copyrights has reorganized the administrative divisions of the Office in the last few years. The Register appointed a Chief Information Officer (“CIO”) to serve as her primary advisor on information technology, and a Director of the Copyright Technology Office, who supervises the day-to-day maintenance of the Office's registration and recordation systems.

The Register also divided the former Information and Records Division into the Office of Public Records and Repositories (“PRR”) and Office of Public Information and Education (“PIE”). PRR, headed by an expert in public administration, includes the Recordation Section, the Records Management Section, and the Records Research and Certification Section. PIE is headed by an Associate Register of Copyrights and includes the Publications Section and the Copyright Information Section.

The proposed rule reflects these developments by updating § 203.3 by providing titles of the Office's senior management and updated descriptions for each division within the Office, including the Office of the Register, the Office of the General Counsel, the Office of Policy and International Affairs, the Office of Registration Policy and Practice, the Office of Public Records and Repositories, the Office of Public Information and Education, the Office of the Chief Information Officer, and the Office of the Chief of Operations (which includes the Receipt Analysis and Control Division, the Copyright Acquisitions Division, and the Licensing Division). It also provides updated mailing addresses as set forth in 37 CFR 201.1(b)(2) and (c). Additionally, when referring to the Office's Web site, the proposed rule replaces the term “homepage” with the term “Web site.”

In the interest of consistency, the proposed rule also removes the initials “U.S.” from certain provisions that refer to the “U.S. Copyright Office.” Finally, the proposed rule clarifies that checks, money orders, or other fees submitted to the Office should be made payable to the “U.S. Copyright Office,” rather than the “Register of Copyrights.” See, e.g., 37 CFR 201.6, 201.33(e)(2)(i), 201.39(g)(3)(i).

II. Compendium of U.S. Copyright Office Practices

The Compendium of U.S. Copyright Office Practices, Third Edition, published in December 2014, is the administrative manual of the Register of Copyrights concerning the statutory duties of the Copyright Office under title 17 of the United States Code. It serves as both a technical manual for the Office's staff and a guidebook for authors, copyright licensees, practitioners, scholars, the courts, and members of the general public.1 The proposed rule clarifies the means for viewing and obtaining copies of the Third Edition, as well as prior editions of the Compendium, set forth in 37 CFR 201.2(b)(7).

The proposed rule corrects errors in spelling, capitalization, punctuation, spacing, and numbering, and addresses inconsistencies in the use of abbreviations, symbols, time periods, and italics. For example, the proposed rule revises 37 CFR 201.4 to reflect that registrations issued under the 1909 Act may contain a prefix consisting of one or two letters (e.g., E, EU, F, G, K, etc.) as opposed to “a two- or three-letter prefix,” and corrects the word “or” to “of” in the definition of “official certification.”

IV. Updated Citations and Cross-References to the Copyright Act and the Code of Federal Regulations

The proposed rule adopts the appropriate format for citing or cross-referencing other provisions of the Code of Federal Regulations, as recommended by the Federal Register Document Drafting Handbook. It also reserves §§ 201.15, 205.6 through 205.10, and 205.14 through 205.20 for future use.

In addition, the proposed rule revises erroneous cross-references to the Copyright Act and the Code of Federal Regulations. By way of example, the proposed rule corrects a cross-reference relating to the deposit requirements for certain sculptural works to make clear the Office's practice of allowing applicants, under certain circumstances, to submit a single copy of a board game (rather than two copies) instead of a photograph, as set forth in 37 CFR 202.20(c)(2)(i)(G) and (c)(2)(xi)(B).

V. Updated Terminology

The proposed rule reflects a number of changes in terminology. These changes replace outdated terms that are no longer used by the Office, but they do not represent a substantive change in policy. For example, the Office now uses the term “applicant” when referring to a person who submits an application for registration, and uses the term “remitter” when referring to a person who submits a document for recordation. The proposed rule adds these terms where they are missing from the regulations. The proposed rule also replaces the term “certificate of record” with “certificate of recordation,” “Visual Arts Regulatory Statements” with “Visual Arts Registry Statements,” “vessel hulls” with “vessel designs,” and “restored works” to “restored copyright.” It also removes references to information provided “on the application” for deposit accounts and the term “preregistration.” Finally, the proposed rule updates the name of Form SC from “Statement of Account for Secondary Transmissions by Satellite Carriers to Home Viewers” in § 201.11(d)(2) to “Statement of Account for Secondary Transmissions by Satellite Carriers of Distant Television Signals.”

VI. Improved Readability and Style

Consistent with the Office's longstanding policy,2 the proposed rule replaces gender-specific references with gender-neutral references. The proposed rule also improves readability by renumbering certain provisions, by rewriting awkward phrases or paragraphs, and by deleting redundant provisions that repeat what is stated elsewhere in the same provision. For example, the Office's regulations governing Freedom of Information Act policies in § 203.4(f) and (g) were rewritten without substantive change to improve readability. In all cases, these changes are intended to clarify the existing regulations, but do not represent a substantive change in policy.

2 Arthur Levine, Memories of Barbara Ringer, Copyright Notices, Apr. 2009, at 3, 6 (noting that Congress used male and female pronouns in the Copyright Act of 1976 at the request of Register of Copyrights Barbara Ringer), available at http://www.copyright.gov/docs/barabara-ringer-special-edition-2009-04.pdf.

VII. Expired or Obsolete Provisions

The Office has identified a number of provisions that have expired or have become obsolete. Because these provisions no longer serve any purpose, the Office is removing them from its regulations.

Effective Date of Registration for Registrations Issued in 1991. The Copyright Fees and Technical Amendments Act of 1989 increased the filing fee for registering a claim to copyright from $10 to $20.3 The proposed rule eliminates a provision in § 202.4 establishing a procedure for assigning an effective date of registration for claims received between January 3, 1991 and December 31, 1991 that were submitted with an insufficient filing fee, as these dates have passed.

3 Public Law 101-318, 104 Stat. 287, 287 (1990).

Registration of Mask Works. The proposed rule removes language in § 211.4(b)(1) specifying that January 7, 1985 will be the effective date of registration for applications to register mask works received before that date 4 because any such applications have been processed by now.

Recordation of Statements of Intent to Enforce Filed Under the North American Free Trade Agreement. Because the deadline for filing a “Statement of Intent” to reclaim copyright protection for certain motion pictures fixed or published in Canada or Mexico that fell into the public domain in the United States due to a lack of a copyright notice under NAFTA expired on December 31, 1994,5 and because the provision that authorized the Office to record these types of statements has been removed from the statute, the proposed rule removes the corresponding provision at 37 CFR 201.31 from the regulations.6

6See Procedures for Copyright Restoration of Certain Motion Pictures and their Contents in Accordance With the North American Free Trade Agreement, 59 FR 58789 (Nov. 15, 1994).

Registration of Restored Works. The proposed rule removes outdated language in § 201.31 related to a procedure for registering foreign works that were restored to copyright protection under section 104A of the Copyright Act (as amended by the URAA) 7 and describes the correct procedure for registering a restored work.

Recordation of Notices of Intent to Enforce a Restored Work Under the URAA. The proposed rule clarifies 37 CFR 201.33 and 201.34, which explain that a list of parties that filed a Notice of Intent to Enforce 8 a restored work under the URAA is available on the Office's Web site, by removing outdated instructions for logging onto the Office's Web site or for obtaining access to these records through terminals located in the Office and reflecting reliance upon email addresses rather than “telefax number[s].”

8 17 U.S.C. 104A(e).

Recordation of Voluntary Agreements Between Copyright Owners and Public Broadcasters. In accordance with statutory changes that removed the prior section 118(b)(2) from the Copyright Act,9 and gave the Copyright Royalty Judges rather than the Register of Copyrights authority over the statutory license in section 118,10 the Office is removing the obsolete regulatory provision at 37 CFR 201.9 relating to recordation of voluntary agreements between copyright owners and public broadcasting entities 11 from the regulations.

IBM-PC Compatible Disks for Recording Documents Pertaining to Computer Shareware. The Office is updating its administrative procedure in 37 CFR 201.26(d)(4)for recording documents pertaining to computer shareware to no longer indicate that they be submitted on both paper and diskette; they will now be accepted without a diskette. The Office has recorded less than two dozen shareware documents since the final rule was adopted.

Copyright Arbitration Royalty Panel Rules and Procedures. Subchapter B contains various regulations relating to the former Copyright Arbitration Royalty Panel or “CARP,” including legacy royalty rates for past accounting periods, which certain regulations were phased out by the Copyright Royalty and Distribution Reform Act of 2004.12 The successor entity to the CARP, the Copyright Royalty Board, has issued its own set of rules and procedures.13 Accordingly, the Office is removing obsolete CARP regulations, while retaining parts 254 and 256 which contain information related to coin-operated phonorecord players and the cable compulsory license, respectively. However, the Office notes that these legacy rates and regulations will remain accessible via past editions of the Code of Federal Regulations for any who may have need to consult them. In addition, legacy regulations are available on the Government Publishing Office's Federal Digital System (“FDsys”) at www.gpo.gov/fdsys.

12See Public Law 108-419, 118 Stat. 2341 (2004).

13See 37 CFR ch. III.

Statements of Account covering compulsory licenses for secondary transmissions by cable systems. The Office is removing the portions of § 201.17(i) that relate to filings covering the accounting periods in 1983 that were affected by the 1982 cable rate adjustment,14 as the Office does not expect to receive any additional filings covering these accounting periods. Similarly, the Office is removing § 201.17(m)(2)(iii), which applies only to statements for the 1978-1 accounting period, along with certain other references to pre-1978 activities in 201.17(e) and (f).

Verification of a Statement of Account for secondary transmissions made by cable systems and satellite carriers. Effective November 18, 2014, the Office implemented § 201.16, which sets forth procedures by which a copyright owner may audit a statement of account filed with the Office under 17 U.S.C. 111(d)(1) or 119(b)(1).15 This regulation includes a provision outlining a procedure in the event the Office received a notice of intent to audit a statement of account prior to the effective date of the section. See 37 CFR 201.16(c)(7). Because the Office did not in fact receive any notice of intent to audit prior to the effective date of the section, that provision is now obsolete and may be removed.

Statements of Account for digital audio recording devices or media. Section 201.28(c)(3) includes provisions that solely concern Statements of Account filed for the period covering October 28, 1992 through the end of the first accounting year for importers/manufacturers of digital audio recording devices. Because the Office does not expect to receive any additional filings covering this accounting period, the Office is removing this language.

Forms on Copyright Office Web site. The proposed rule updates § 201.28 to reflect that forms relating to various statutory licenses are available on the Copyright Office Web site and removes references addressing requests by mail or facsimile.

Telegrams and Cablegrams. The existing regulations in §§ 201.13 and 201.22 allow copyright owners to serve certain types of notices required under sections 110(4)(B)(iii) 16 and 411(c) 17 by telegram or cablegram. The proposed rule updates these regulations to remove references to these obsolete forms of communication and instead allow for service of notices by email or fax.

16 17 U.S.C. 110(4)(B)(ii) and (iii).

17 17 U.S.C. 411(c)(1).

Inspection of U.S. Copyright Office Records. The proposed rule removes § 201.2(b)(4)'s requirement that requests to inspect a pending application, deposit for a pending application,18 or a document submitted for recordation19 be limited to materials submitted within twelve months prior to the request, given that the processing time for a paper application may be longer than that in some cases.

PART 201—GENERAL PROVISIONS1. Revise the authority citation for part 201 to read as follows:Authority:

17 U.S.C. 702.

§ 201.1 [Amended] 2. Amend § 201.1 as follows:a. In paragraph (a), remove “on-site deliveries from commercial and private couriers” and add in its place “direct deliveries from commercial couriers and messengers”.b. In paragraph (b)(2), remove “20559” and add in its place “20559-6000”, remove the term “Hull” from the “Type of submission” column of the table, and remove the term “AD” from the “Code” column of the table and add in its place the term “CAD/AD”.c. In paragraph (c)(1), remove “Information and Records Division” and add in its place “Office of Public Information and Education”.d. In paragraph (c)(2), remove “Sections” and add in its place “sections”.e. In paragraph (c)(4), remove “hull” and add in its place “design”.f. In paragraph (c)(5), remove “Records Research and Certification,” and add in its place “Records Research and Certification Section,”.g. In paragraphs (c)(6) and (c)(7), remove “Section” and add in its place “section”.h. In paragraph (c)(7), remove “Ave.” and add in its place “Avenue”.3. Amend § 201.2 as follows:a. In paragraph (b)(1), remove “Certifications and Documents Section” and add in its place “Records Research and Certification Section”.b. In paragraph (b)(3) introductory text, remove “Information and Records Division” and add in its place “Office of Public Information and Education”.c. In paragraph (b)(3)(i)(C), remove “the remitter” and add in its place “the applicant or remitter”.d. Redesignate the introductory text of paragraph (b)(4) as paragraph (b)(4)(i), redesignate paragraphs (b)(4)(i) and (ii) as paragraphs (b)(4)(i)(A) and (B), and designate the undesignated text preceding paragraph (b)(5) as paragraph (b)(4)(ii).e. In newly redesignated paragraph (b)(4)(i), remove the phrase “that were submitted within the twelve month period immediately preceding the request for access”.f. In newly redesignated paragraph (b)(4)(ii), remove “Copyright Information” and add in its place “Records Research and Certification”.g. Revise paragraph (b)(7).h. In paragraph (d)(1)(iv), remove “Certifications” and add in its place “Certification”.

The revision reads as follows:

§ 201.2 Information given by the Copyright Office.

(b) * * *

(7) The Register of Copyrights has issued an administrative manual known as the Compendium of U.S. Copyright Office Practices, Third Edition. The Compendium explains many of the practices and procedures concerning the Office's mandate and statutory duties under title 17 of the United States Code. It is both a technical manual for the Copyright Office's staff, as well as a guidebook for authors, copyright licensees, practitioners, scholars, the courts, and members of the general public. The Third Edition and prior editions of the Compendium may be viewed, downloaded, or printed from the Office's Web site. They are also available for public inspection and copying in the Records Research and Certification Section.

§ 201.3 [Amended]4. Amend § 201.3 as follows:a. In paragraph (c)(3), remove “predominately” and add in its place “predominantly”.b. In paragraph (c)(9), remove the period from the end of the first line and add in its place a colon and remove “$130” and add in its place “130”.c. In paragraph (c)(11), remove “hull” and add in its place “design”.d. In the heading of paragraph (d), remove “Service Fees” and add in its place “service fees”.e. In paragraph (d)(6), remove the period from the end of the term “Variable” in the “Fees ($)” column of the table.f. In table heading of paragraph (e), remove “division” and add in its place “Division”.§ 201.4 [Amended]5. Amend § 201.4 as follows:a. In the introductory text of paragraph (a)(1), remove “, as amended by Public Law 94-553”.b. In paragraph (a)(2), remove “, as amended by Public Law 94-553”.c. In paragraph (a)(3)(ii), remove “or” and add in its place “of”.d. In paragraph (c)(4)(ii)(D)(4), remove “a two- or three-letter” and add in its place “a one-, two-, or three-letter”.e. In paragraph (c)(4)(iii), add a period after “Public Catalog” and remove “and the remitter” and add in its place “The remitter”.f. In paragraph (e), remove “record” and add in its place “recordation”.§ 201.5 [Amended]6. Amend § 201.5 as follows:a. In paragraphs (a)(1) introductory text, (a)(1)(i)(A) and (a)(1)(ii), remove “, as amended by Public Law 94-553”.b. In paragraph (b)(2)(i), remove the semicolon from the end and add in its place a period.c. In paragraph (b)(2)(iii)(B), remove “; and” and add in its place a period.§ 201.6 [Amended]7. Amend § 201.6 as follows:a. In paragraph (a), remove “Register of Copyrights” from the first sentence and add in its place “U.S. Copyright Office”.b. In paragraph (b)(3), remove the last sentence.c. In paragraph (c)(1), remove “hulls” from the first sentence and add in its place “designs”.d. In paragraphs (c)(1) and (2), remove the phrase “, and refunds of less than $2 may be made in postage stamps”.e. In paragraph (c)(3), remove the comma after the term “Records” in the last sentence.f. In paragraph (d), remove “transferred for the” and add in its place “transferred for use in the”.§ 201.7 [Amended]8. Amend § 201.7 as follows:a. In paragraph (c)(1), remove “de minimis” from the first sentence and add in its place “insufficiently creative” and remove “not in accordance with title 17 U.S.C., Chapters 1 through 8” from the last sentence and add in its place “not in accordance with U.S. copyright law”.b. In paragraph (c)(2), remove “remitter” and add in its place “applicant”.c. In paragraph (d), remove “remitter” from the first sentence and add in its place “applicant”.§ 201.8 [Amended]9. Amend § 201.8 as follows:a. In paragraphs (c)(1) introductory text paragraph and (c)(1)(i), remove “claimant” and add in its place “applicant” each place it appears.b. In paragraph (d), remove “certificate or registration” and add in its place “certificate of registration”.c. In paragraphs (f)(2) and (3), remove “mail” and add in its place “Mail”.d. In paragraph (g), remove “one of the addresses specified in § 201.1” and add in its place “the address specified in § 201.1(c)(1)”.§ 201.9 [Removed and reserved]10. Remove and reserve § 201.9.§ 201.10 [Amended]11. Amend § 201.10 as follows:a. In the introductory text, remove “sections 203, 304(c) and 304(d) of title 17, of the United States Code” and add in its place “17 U.S.C. 203, 304(c), and 304(d)”.b. In paragraphs (b)(1) introductory text, remove “sections 304(c) and 304(d) of title 17, U.S.C.,” and add in its place “17 U.S.C. 304(c) and 304(d)”.c. In paragraph (b)(1)(vii)(B), remove “section 304 of title 17, U.S.C.,” and add in its place “17 U.S.C. 304”.d. In paragraph (b)(2) introductory text, remove “section 203 of title 17, U.S.C.,” and add in its place ” 17 U.S.C. 203”.e. In paragraph (b)(2)(vii)(B), remove “section 203 of title 17, U.S.C.” and add in its place “17 U.S.C. 203”.f. In paragraph (c)(2), remove “section 304(c) or section 304(d), whichever applies, of title 17, U.S.C.” and add in its place “17 U.S.C. 304(c) or 304(d), whichever applies”.g. In paragraph (c)(3), remove “section 203 of title 17, U.S.C.” and add in its place “17 U.S.C. 203”.h. In paragraph (d)(2), remove “section 203, section 304(c) or section 304(d) of title 17, U.S.C.” and add in its place “17 U.S.C. 203, 304(c), or 304(d)”.i. In paragraph (d)(4), remove “section 203, section 304(c), or section 304(d) of title 17, U.S.C.” and add in its place “17 U.S.C. 203, 304(c), or 304(d)”.j. In paragraph (e)(1), remove “section 203, section 304(c), or section 304(d) of title 17, U.S.C.” and add in its place “17 U.S.C. 203, section 304(c), or section 304(d)”.k. In paragraph (d)(1), remove “first-class” and add in its place “first class”.l. In paragraph (d)(3), remove “reasonable investigation” and add in its place “reasonable investigation” and remove ” “reasonable investigation” ” and add in its place “reasonable investigation”.m. In paragraph (f)(1) introductory text, remove “paragraph (2) of this paragraph (f)” and add in its place “paragraph (f)(2) of this section”.n. In paragraph (f)(1)(ii), remove “first-class” and add in its place “first class”.o. In paragraph (f)(3), remove “record” and add in its place “recordation”.p. In paragraph (f)(4), remove “section 203(a)(3) or section 304(c)(3), as applicable, of title 17, United States Code” and add in its place “17 U.S.C. 203(a)(3) or 304(c)(3), whichever applies” and remove “§ 201.4(c)(3)” and add in its place “§ 201.4”.q. In paragraph (f)(7), remove “§ 201.1” and add in its place “§ 201.1(c)(2)”.§ 201.11 [Amended]12. Amend § 201.11 as follows:a. In paragraph (a), remove “section 119(b)(1) and Section 122(a) of title 17 of the United States Code, as amended by Public Law 111-175” and add in its place “17 U.S.C. 119(b)(1), as amended by Public Law 111-175”, remove “that” and add in its place “for”, and add the term “to” after the phrase “private home viewing”.b. In paragraph (b)(1), remove “and” and add in its place “and”, remove “Section 119(d) of title 17 of the United States Code, as amended by Public Law 111-175” and add in its place “17 U.S.C. 119(d), as amended by Public Law 111-175”.c. In paragraph (c)(1), remove “section 119(b)(1)(B) and (c)(3) of title 17” and add in its place “17 U.S.C. 119(b)(1)(B)” and remove “not later than” and add in its place “no later than” each place it appears.d. In paragraph (d)(1), remove the term “U.S.”, and remove “free upon request. Requests may be mailed to the address specified in § 201.1” and add in its place “free from the Copyright Office Web site”.e. In paragraph (d)(2), remove “Statement of Account for Secondary Transmissions by Satellite Carriers to Home Viewers” and add in its place “Form SC (Statement of Account for Secondary Transmissions by Satellite Carriers of Distant Television Signals)”.f. In paragraphs (e)(6) and (7), remove “§ 258.3” and add in its place “§ 386.2”.g. In paragraph (h)(3)(i), remove the second sentence and add in its place “Telephone or similar unsigned requests that meet these conditions may be permitted, where a follow-up written request detailing the same information is received by the Copyright Office within fourteen days after the required thirty-day period.”.§ 201.12 [Amended]13. Amend § 201.12 as follows:a. In paragraph (a), remove “section 111(e)(2) of title 17 of the United States Code as amended by Public Law 94-553” and add in its place “17 U.S.C. 111(e)(2)”.b. In paragraph (b), remove “§ 201.3” and add in its place “§ 201.3(e)”.c. In paragraph (c), remove “record” from the last sentence and add in its place “recordation”.§ 201.13 [Amended]14. Amend § 201.13 as follows:a. In paragraph (a), remove “section 110(4) of title 17 of the United States Code as amended by Public Law 94-553” and add in its place “17 U.S.C. 110(4)”.b. In paragraph (d)(3), remove “a telegram” and add in its place “an email, fax,” and remove “said paragraph (e)” and add in its place “paragraph (e) of this section”.c. In paragraph (e)(2)(iii), remove “Telegram, cablegram,” and add in its place “Email, fax,”.§ 201.14 [Amended]15. Amend § 201.14 as follows:a. In paragraphs (a)(1) and (2), remove “as amended by Public Law 94-553”.b. In paragraph (c)(2), remove “8” and add in its place “eight”.§ 201.15 [Reserved]16. Add and reserve § 201.15.§ 201.16 [Amended]17. Amend § 201.16 by removing paragraph (c)(7).18. Amend § 201.17 as follows:a. In paragraph (a), remove “Coypright” and add in its place “Copyright” and remove “section 111(d)(2) of title 17 of the United States Code” and add in its place “17 U.S.C. 111(d)(1)”.b. In paragraph (b)(1), remove “Gross receipts for the” and add in its place “Gross receipts for the”.c. In paragraph (b)(2), remove “§ 201.17 of” each place it appears and remove “section, shall be” and add in its place “section shall be”.d. In paragraph (b)(5), remove “Section 111(f) of title 17 of the United States Code, as amended by Public Law 94-553, Public Law 103-369, and Public Law 111-175” and add in its place “17 U.S.C. 111(f), as amended by Public Laws 94-553, 103-369, and 111-175”.e. In paragraph (b)(7), remove “translator station is,” and add in its place “translator station is”.f. In paragraph (b)(9), remove “FCC”, ” and add in its place “FCC,” ”.g. Revise paragraph (c)(1). h. In paragraph (d)(1), remove the term “U.S.”, and remove “upon request. Requests may be mailed to the address specified in § 201.1” and add in its place “from the Copyright Office Web site”.i. In paragraph (e)(5)(iii), add a period to the end of the sentence.j. Revise paragraph (e)(7) k. Revise paragraph (f)(3).l. Remove paragraph (i)(1)(vi).m. Revise paragraph (i)(3).n. Remove paragraphs (i)(4) and (5).o. Redesignate paragraphs (i)(6) through (10) as paragraphs (i)(4) through (8), respectively.p. In paragraph (m)(2)(i), remove “incomplete;” and add in its place “incomplete; or”.q. In paragraph (m)(2)(ii), remove “low; or” and add in its place “low.”.r. Remove paragraph (m)(2)(iii).s. In paragraph (m)(4)(i), remove the second sentence and add in its place “Telephone or similar unsigned requests that meet these conditions may be permitted, where a follow-up written request detailing the same information is received by the Copyright Office within fourteen days after the required sixty-day period.”t. Remove paragraph (m)(4)(iii)(C).u. In paragraph (m)(4)(iv)(A), remove the phrase “(except those filed under paragraph (m)(2)(iii) of this section)”.v. In paragraph (m)(4)(iv)(B), remove the comma after the phrase “this paragraph (m)”.

(1) Statements of Account shall cover semiannual accounting periods of January 1 through June 30, and July 1 through December 31, and shall be deposited in the Copyright Office, together with the total royalty fee for such accounting periods as prescribed by 17 U.S.C. 111(d)(1)(B) through (F), by no later than the immediately following August 29, if the Statement of Account covers the January 1 through June 30 accounting period, and by no later than the immediately following March 1, if the Statement of Account covers the July 1 through December 31 accounting period.

(e) * * *

(7) The designation “Gross Receipts”, followed by the gross amount paid to the cable system by subscribers for the basic service of providing secondary transmissions of primary broadcast transmissions during the period covered by the Statement of Account.

(i) If the cable system maintains its revenue accounts on an accrual basis, gross receipts for any accounting period includes all such amounts accrued for secondary transmission service furnished during that period, regardless of when accrued:

(A) Less the amount of any bad debts actually written-off during that accounting period;

(B) Plus the amount of any previously written-off bad debts for secondary transmission service which were actually recovered during that accounting period.

(ii) If the cable system maintains its revenue accounts on a cash basis, gross receipts of any accounting period includes all such amounts actually received by the cable system during that accounting period.

(f) * * *

(3) In computing the DSE of a primary transmitter in a particular case of carriage on or after July 1, 1981, the cable system may make no prorated adjustments other than those specified in 17 U.S.C. 111(f)(5)(B), and which remain in force under that provision. Two prorated adjustments, as prescribed in that section, are permitted under certain conditions where:

(i) A station is carried on a part-time basis where full-time carriage is not possible because the cable system lacks the activated channel capacity to retransmit on a full-time basis all signals which it is authorized to carry; and

(ii) A station is carried on a “substitute” basis under rules, regulations, or authorizations of the FCC in effect on October 19, 1976 (as defined in 17 U.S.C. 111(f)(5)(B)(ii)), which permitted a cable system, at its election, to omit the retransmission of a particular program and substitute another program in its place.

(i) * * *

(3) It shall be presumed that the 3.75% rate of 37 CFR 308.2(c) applies to DSEs accruing from newly added distant signals, carried for the first time by a cable system after June 24, 1981. The presumption of this section can be rebutted in whole or in part:

(i) By actual carriage of a particular distant signal prior to June 25, 1981, as reported in Statements of Account duly filed with the Copyright Office (“actual carriage”), unless the prior carriage was not permitted by the FCC; or

(ii) By carriage of no more than the number of distant signals which was or would have been allotted to the cable system under the FCC's quota for importation of network and nonspecialty independent stations (47 CFR 76.59(b), 76.61 (b) and (c), and 76.63, referring to 76.61 (b) and (c), in effect on June 24, 1981).

§ 201.18 [Amended] 19. Amend 201.18 as follows:a. In paragraph (a)(2), remove “his” and add in its place “the”.b. In paragraph (a)(4) introductory text, remove “subparagraphs (ii) and (iii)” and add in its place “paragraphs (a)(4)(ii) and (iii) of this section”, and in paragraphs (a)(4)(i) and (ii), remove “that that” and add in its place “that” each place it appears.c. In paragraph (a)(5), remove the phrase “copyright owner,” and add in its place the phrase ” “copyright owner,” ”.d. In paragraph (b), remove “paragraph (a)(4)” and add in its place “paragraph (a)(6)”, and remove “§ 210.11(e)” and add in its place “§ 210.16(g)”.e. In paragraph (f)(3), remove the phrase “filed by being” from the fourth sentence.f. In paragraph (f)(4), remove “paragraph (a)(4)” and add in its place “paragraph (b)” each place it appears.§ 201.22 [Amended]20. Amend § 201.22 as follows:a. In paragraphs (a)(1) and (c)(1)(i), remove “411(b)” and add in its place “411(c)”.b. In paragraph (d)(3), remove “a telegram” and add in its place “an email, fax,”.c. In paragraph (e)(1), remove “411(b)(1)” and add in its place “411(c)(1)”.d. In paragraph (e)(2)(iii), remove “Telegram, cablegram,” and add in its place “Email, fax,”.§ 201.23 [Amended]21. Amend § 201.23 as follows:a. In paragraph (a), remove “, as amended by Pub. L. 94-553, 90 Stat. 2541, effective January 1, 1978” and remove the phrase “, as amended by Pub. L. 94-553”.b. In paragraph (b), remove “Provided, That:” and add in its place “provided that:”.c. In paragraphs (b)(1) through (3), remove the phrase “, as amended by Pub. L. 94-553” wherever it appears.§ 201.25 [Amended]22. Amend § 201.25 as follows:a. In paragraph (c)(1), remove “Regulatory” from the first sentence and add in its place “Registry”.b. In paragraph (e), remove “record” from the second sentence and add in its place “recordation”.§ 201.26 [Amended]23. Amend § 201.26 as follows:a. In paragraph (b), remove “Definitions-”and add in its place “Definitions. ”.b. In paragraph (d), remove “Documents-” and add in its place “documents. ”.c. Remove paragraph (d)(4).d. In paragraph (f), remove “record” from the second sentence and add in its place “recordation”.§ 201.27 [Amended]24. Amend § 201.27(b)(3) by removing the comma following the term “cassette”.§ 201.28 [Amended]25. Amend § 201.28 as follows:a. In paragraph (c)(3), remove the third and fourth sentences. b. In paragraph (d)(1), remove “from the Licensing Division, Library of Congress” and add in its place “free from the Copyright Office Web site”, remove “Forms and other information may be requested from the Licensing Division by facsimile transmission (FAX), but copies” and add in its place “Copies” and remove “FAX” and add in its place “fax”.c. In paragraph (e)(5), remove “facsimile (FAX)” and add in its place “fax”.d. In paragraph (j)(3)(i), remove the third sentence and add in its place “Telephone or similar unsigned requests that meet these conditions may be permitted, where a follow-up written request detailing the same information is received by the Copyright Office within 14 days after the required 60-day period.”.§ 201.29 [Amended]26. Amend § 201.29 as follows:a. In paragraph (e), remove the term “5” and add in its place the term “five”.b. In paragraph (h)(1), remove the parentheses from the around the phrase “of the manufacturing party or importing party”.c. In paragraph (h)(2), remove “telefax” and add in its place “fax”.d. In paragraph (h)(6), remove the term “(AHRA)”.§ 201.31 [Removed and reserved]27. Remove and reserve § 201.31.28. Amend § 201.33 as follows:a. In paragraph (a), remove “automated database, which can be accessed over the Internet” from the last sentence and add in its place “Web site”.b. In paragraph (b)(2)(iii), remove the phrase “the new” each place it appears.c. In paragraph (b)(3)(iii)(A), remove “United States” and add in its place “U.S.”.d. In paragraph (d)(3)(ii)(G), remove “Telefax number” and add in its place “Email address”.e. In paragraph (e)(2)(i), remove “Register of Copyrights” and add in its place “U.S. Copyright Office”.f. In paragraph (e)(2)(ii), remove “U.S.” from each place it appears in the paragraph heading and the paragraph body, and remove “§ 201.1” from the last sentence and add in its place “§ 201.1(b)”.g. In paragraph (e)(2)(iii), remove “VISA, MasterCard and American Express” from the first sentence and add in its place “most major credit cards”.h. Revise paragraph (f).

The revision reads as follow:

§ 201.33 Procedures for filing Notices of Intent to Enforce a restored copyright under the Uruguay Round Agreements Act.

(f) Public access. Notices of Intent to Enforce filed with the Copyright Office are available for public inspection and copying in the Records Research and Certification Section. Some of the information contained in these records is available on the Office's Web site, including the title of the work or a brief description if the work is untitled and the name of the copyright owner or owner of an exclusive right.

Appendix A to § 201.33 [Amended]29. Amend Appendix A to § 201.33 by removing “Telefax” from item 13 and adding in its place “Fax”.30. Amend § 201.34 as follows:a. In paragraph (d)(3)(viii)(D), remove “telefax” and add in its place “fax”.b. In paragraph (e), italicize “Fee—” in the paragraph heading.c. Revise paragraph (f).

The revision reads as follows:

§ 201.34 Procedures for filing Correction Notices of Intent to Enforce a Copyright Restored under the Uruguay Rounds Agreement Act.

(f) Public access. Correction Notices of Intent to Enforce filed with the Copyright Office are available for public inspection and copying in the Records Research and Certification Section.

§ 201.38 [Amended]31. Amend § 201.38 in paragraph (e) by removing “§ 201.1” from the first sentence and adding in its place “§ 201.1(c)(3)” and by removing the sentence “If mailed, the Interim Designation should be addressed to: Copyright GC/I&R, PO Box 70400, Washington, DC 20024.”.§ 201.39 [Amended]32. Amend § 201.39 as follows:a. In paragraph (g)(1), italicize the paragraph heading “Method of filing.”.b. In paragraph (g)(3)(i), remove “Register of Copyrights” and add in its place “U.S. Copyright Office”.c. In paragraph (g)(3)(ii), remove “U.S.” from each place it appears in the paragraph heading and the paragraph body and remove “§ 201.1” and add in its place “§ 201.1(b)”.PART 202—PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT33. The authority citation for part 202 continues to read as follows:Authority:

17 U.S.C. 408(f), 702.

§ 202.2 [Amended]34. Amend § 202.2 as follows:a. In paragraph (b)(2), remove “his” and add in its place “the producer's”.b. In paragraph (b)(5), remove “his name” and add in its place “that person's name”.c. Redesignate paragraphs (b)(6)(i) through (iii) as paragraphs (b)(6)(i)(A) through (C), respectively, redesignate the introductory text of paragraph (b)(6) as (b)(6)(i), and designate the undesignated text preceding paragraph (b)(7) as (b)(6)(ii).d. In newly redesignated paragraph (b)(6)(i)(C), remove “Provided, however, That” and add in its place “Provided, however, that” and remove “three foregoing types of cases” and add in its place “three types of cases described in paragraphs (b)(6)(i)(A) through (C) of this section”.§ 202.3 [Amended]35. Amend § 202.3 as follows:a. In paragraph (a)(1), remove the phrase “, as amended by Public Law 94-553”.b. In paragraph (b)(1)(v), italicize the paragraph heading “Class SE: Serials.”.c. In paragraph (b)(2)(i)(A), remove ” [www.copyright.gov]” and add in its place “(www.copyright.gov)”.d. In paragraph (b)(2)(i)(D), remove the phrase “a remitter” and add in its place the phrase “an applicant”.e. In paragraph (b)(2)(ii)(C), remove “the type of authorship that predominates” from the fourth sentence and add in its place “the predominant type of authorship”.f. In paragraph (b)(2)(ii)(D), remove ” [www.copyright.gov]” and add in its place “(www.copyright.gov)”.g. In paragraph (b)(6)(v), remove “under 408(c)(1) of title 17” and add in its place “under 17 U.S.C 408(c)(1)”.h. In paragraph (b)(8)(i), remove the phrase “, as amended by Public Law 94-553”.§ 202.4 [Removed and reserved]36. Remove and reserve § 202.4.§ 202.5 [Amended]37. Amend § 202.5 as follows:a. In paragraph (a), remove the term “hull”.b. In paragraph (b)(2), remove “§ 201.3(d)(3)(i)” and add in its place “§ 201.3(d)”.c. In paragraph (b)(3), remove “Registration Program written notice” and add in its place “written notice from the Registration Program” and remove the term “initial”.d. In paragraph (c)(2), remove “§ 201.3(d)(3)(ii)” and add in its place “§ 201.3(d)”.e. In paragraph (d)(1), remove “§ 201.1” and add in its place “§ 201.1(c)(4)”.f. In paragraph (e), remove “wavier” from the paragraph heading and add in its place “waiver”.38. Amend § 202.12 as follows:a. In paragraph (b)(1), italicize the terms “restored work” and “source country”, and remove the term “the URAA” and add in its place the phrase “17 U.S.C. 104(A)(g)(6) and (8)”.b. Revise paragraph (c)(1).c. Remove paragraph (c)(2).d. Redesignate paragraphs (c)(3) and (4) as paragraphs (c)(2) and (3), respectively.e. In newly redesignated paragraph (c)(2)(ii)(A), remove “Register of Copyrights” and add in its place “U.S. Copyright Office”.f. In newly redesignated paragraph (c)(2)(ii)(B), remove “U.S.” from each place it appears in the paragraph heading and the paragraph body.g. In newly redesignated paragraph (c)(2)(ii)(C), remove “URAA” and add in its place “GATT” and remove “VISA, MasterCard, and American Express” and add in its place “most major credit cards”.h. In newly redesignated paragraph (c)(3)(i), remove “the amended section 104A” and add in its place “17 U.S.C. 104A” and remove “paragraphs (c)(4) (ii)” and add in its place “paragraphs (c)(3)(ii)”.i. In newly redesignated paragraph (c)(3)(iv), remove “paragraph (c)(4)(i)” and add in its place “paragraph (c)(3)(i)”.j. In newly redesignated paragraph (c)(3)(v), remove “may seek an alternative deposit under special relief (37 CFR 202.20(d))” and add in its place “may submit an alternative deposit under a grant of special relief under § 202.20(d)”.k. In newly redesignated paragraph (c)(3)(vi), remove “telefax” and add in its place “fax”.l. In paragraph (d), remove “copyrights” and add in its place “works”.

The revision reads as follows:

§ 202.12 Restored copyrights.

(c) Registration—(1) Application. Applications for registration for single works restored to copyright protection under the URAA should be made on Form GATT. Copies of this form may be obtained from the Office's Web site or by contacting the Public Information Office at (202) 707-3000. Applicants should submit the completed application with the appropriate filing fee and deposit copies and materials required by paragraph (c)(3) of this section in the same package by mail.

§ 202.16 [Amended]39. Amend § 202.16 as follows:a. In paragraph (a), remove “Section 408(f) of 17 U.S.C.” and add in its place “17 U.S.C. 408(f).”.b. Revise paragraph (c)(3).c. In paragraph(c)(5)(ii)(A), italicize the paragraph heading “Copyright Office deposit account.”d. In paragraph (c)(5)(ii)(B), italicize the paragraph heading “Credit cards, debit cards and electronic funds transfer.”e. In paragraph (c)(5)(ii)(C), italicize the paragraph heading “No refunds.”f. Revise paragraph (c)(6)(i) and paragraphs (c)(6)(iii) through (v).h. In paragraph (c)(6)(vi), remove the last sentence and add in its place “The description may also explain the general presentation (e.g., the lighting, background scenery, positioning of elements of the subject matter as it is seen in the photographs), and should provide any locations and events, if applicable, associated with the photographs.”i. Revise paragraph (c)(10).j. In paragraph (c)(11), remove “Information and Records Division” and add in its place “Office of Public Information and Education”.k. Revise paragraph (c)(12).

The revisions read as follows:

§ 202.16 Preregistration of copyrights.

(c) * * *

(3) Application. An application for preregistration must be submitted electronically on the Copyright Office Web site at: http://www.copyright.gov.

(6) * * *

(i) For motion pictures, the identifying description should include the following information to the extent known at the time of filing: The subject matter, a summary or outline, the director, the primary actors, the principal location of filming, and any other information that would assist in identifying the particular work being preregistered.

(iii) For musical compositions, the identifying description should include the following information to the extent known at the time of filing: The subject matter of the lyrics, if any; the genre of the work (e.g., classical, pop, musical comedy, soft rock, heavy metal, gospel, rap, hip-hop, blues, jazz); the performer, principal recording location, record label, motion picture, or other information relating to any sound recordings or motion pictures that are being prepared for commercial distribution and will include the musical composition; and any other detail or characteristic that may assist in identifying the particular musical composition.

(iv) For literary works in book form, the identifying description should include to the extent known at the time of filing: The genre of the book (e.g., biography, novel, history, etc.), and should include a brief summary of the work including, the subject matter (e.g., a biography of President Bush, a history of the war in Iraq, a fantasy novel); a description (where applicable) of the plot, primary characters, events, or other key elements of the content of the work; and any other salient characteristics of the book (e.g., whether it is a later edition or revision of a previous work, as well as any other detail which may assist in identifying the literary work in book form).

(v) For computer programs (including videogames), the identifying description should include to the extent known at the time of filing: The nature, purpose and function of the computer program, including the programming language in which it is written and any particular organization or structure in which the program has been created; the form in which it is expected to be published (e.g., as an online-only product; whether there have been previous versions and identification of such previous versions); the identities of persons involved in the creation of the computer program; and, if the work is a videogame, also the subject matter of the videogame and the overall object, goal, or purpose of the game, its characters, if any, and the general setting and surrounding found in the game.

(10) Notification of preregistration. Upon completion of the preregistration, the Copyright Office will email an official notification of the preregistration to the person who submitted the application.

(12) Public record of preregistration. The preregistration record also will be made available to the public on the Copyright Office Web site at: http://www.copyright.gov.

§ 202.17 [Amended]40. Amend § 202.17 as follows:a. In paragraph (b)(1), remove “[as” and add in its place “(as” and remove “(C)]” and add in its place “(C))”.b. In paragraph (c)(2), remove “409(11),” and add in its place “409(10),”.c. In the heading to paragraph (e), remove “Section” and add in its place “section”.d. In paragraph (e)(2), remove “name[s]” and add in its place “name(s)” each place it appears, remove “claimant[s]” and add in its place “claimant(s)” each place it appears, and remove “sixty-seven year” and add in its place “67-year”.e. In paragraph (e)(3), remove “(b)(4)” and add in its place “(b)(3)”.f. In paragraph (f)(2), remove “(f)(1)(i)” and add in its place “(f)(1)”.g. In paragraph (g)(1), remove “U.S. Copyright Office homepage at http://www.copyright.gov” from the second sentence and add in its place “Copyright Office Web site at: http://www.copyright.gov”, remove “Request.” and add in its place “request.”, and remove “§ 201.1” and add in its place “§ 201.1(b)”.h. In paragraph (h)(3)(vii), remove “[effective” and add in its place “(effective” and remove “1988]” and add in its place “1988)”.41. Amend § 202.19 as follows:a. In paragraph (a), remove “, as amended by Public Law 94-553” and remove “of these regulations”.b. Revise paragraph (b)(2).c. In paragraph (b)(4), remove “§ 202.19(c)(5) of this regulation” and add in its place “paragraph (c)(5) of this section”.d. In paragraphs (c)(5) and (d)(2)(iii)(B), and (d)(2)(iv), remove “of these regulations” wherever it occurs.e. Revise paragraph (d)(2)(iv).f. In paragraph (d)(2)(vi), remove the comma after the term “kits”.g. In paragraph (e)(1)(iv), remove the phrase “of these regulations”.h. In paragraph (e)(3), remove “for Registration Program” and add in its place “of Copyrights and Director of the Office of Registration Policy and Practice”.i. In paragraph (f)(1), remove “on the application” and remove “of these regulations”.

The revisions read as follows:

§ 202.19 Deposit of published copies or phonorecords for the Library of Congress.

(b) * * *

(2) A complete copy includes all elements comprising the unit of publication of the best edition of the work, including elements that, if considered separately, would not be copyrightable subject matter or would otherwise be exempt from the mandatory deposit requirement under paragraph (c) of this section.

(i) In the case of sound recordings, a “complete” phonorecord includes the phonorecord, together with any printed or other visually perceptible material published with such phonorecord (such as textual or pictorial matter appearing on record sleeves or album covers, or embodied in leaflets or booklets included in a sleeve, album, or other container).

(ii) In the case of a musical composition published in copies only, or in both copies and phonorecords:

(A) If the only publication of copies in the United States took place by the rental, lease, or lending of a full score and parts, a full score is a “complete” copy; and

(B) If the only publication of copies in the United States took place by the rental, lease, or lending of a conductor's score and parts, a conductor's score is a “complete” copy.

(iii) In the case of a motion picture, a copy is “complete” if the reproduction of all of the visual and aural elements comprising the copyrightable subject matter in the work is clean, undamaged, undeteriorated, and free of splices, and if the copy itself and its physical housing are free of any defects that would interfere with the performance of the work or that would cause mechanical, visual, or audible defects or distortions.

(iv) In the case of an electronic work published in the United States and available only online, a copy is “complete” if it includes all elements constituting the work in its published form, i.e., the complete work as published, including metadata and formatting codes otherwise exempt from mandatory deposit.

(d) * * *

(2) * * *

(iv) In any case where an individual author is the owner of copyright in a published pictorial or graphic work and:

(A) Less than five copies of the work have been published; or

(B) The work has been published and sold or offered for sale in a limited edition consisting of no more than three hundred numbered copies, the deposit of one complete copy of the best edition of the work or, alternatively, the deposit of photographs or other identifying material in compliance with § 202.21, will suffice in lieu of the two copies required by paragraph (d)(1) of this section.

42. Amend § 202.20 as follows:a. In paragraph (a), remove “, as amended by Public Law 94-553” and remove “of these regulations”.b. In paragraph (b)(1), remove “The” and add in its place “The”.c. In paragraph (b)(2)(ii), remove “(b)(2) (iv)” and add in its place “(b)(2)(iv)”.d. Revise paragraph (b)(2)(iii).e. In paragraph (b)(2)(v), remove “§ 202.19(b)(2) of these regulations;” and add in its place “§ 202.19(b)(2)(i).”.f. In paragraph (b)(2)(vi)(B), remove the term “copy;” and add in its place the term “copy.”.g. In paragraph (b)(6), remove “§ 202.20” and add in its place “section” and remove the term “as”.h. In paragraph (c)(2)(i)(G), remove “(c)(2)(xi)(B)(5)” and add in its place “(c)(2)(xi)(B)”.i. In paragraphs (c)(2)(ii), (c)(2)(iii)(B), (c)(2)(iv), and (c)(2)(v), remove the phrase “of these regulations” each place it appears.j. In paragraph (c)(2)(vii)(A)(2), remove “units, entire” and add in its place “units, the entire” and remove “proportinately” and add in its place “proportionately”.k. In paragraphs (c)(2)(viii)(A) and (c)(2)(x), remove the phrase “of these regulations” each place it appears.l. In paragraph (c)(2)(xi)(A), remove “of these regulations” and add in its place “of this chapter”.m. In paragraphs (c)(2)(xii) and (c)(2)(xiii), remove the phrase “of these regulations” each place it appears.n. In paragraph (c)(2)(xvi), remove “the deposit phonorecord” and add in its place “the phonorecord”.o. In paragraph (c)(2)(xviii)(A), add footnote 6 after the first sentence, and designate the undesignated text after paragraph (c)(2)(xviii)(A)(4) as the text to footnote 6 with a superscript “6” preceding the text.p. In paragraph (c)(2)(xviii)(B), remove the phrase “of these regulations” and add footnote 7 after the second sentence. Designate the undesignated text after paragraph (c)(2)(xviii)(B)(4) as the text to footnote 7 with a superscript “7” preceding the text.q. In paragraphs (d)(1)(iv) and (d)(3), remove “of these regulations” each place it appears.r. In paragraph (d)(3), remove “for Registration Program of the Copyright Office” and add in its place “of Copyrights and Director of the Office of Registration Policy and Practice”.s. In paragraph (e), remove “section 407 of title 17 and § 202.19 of these regulations” and add in its place “17 U.S.C. 407 and § 202.19”, remove “of claim” and add in its place “of a claim”, and remove the phrase “on the application”.

The revision reads as follows:

§ 202.20Deposit of copies and phonorecords for copyright registration.

(b) * * *

(2) * * *

(iii) Works submitted for registration in digital formats. A “complete” electronically filed work is one which is embodied in a digital file which contains:

(A) If the work is unpublished, all authorship elements for which registration is sought; and

(B) If the work is published solely in an electronic format, all elements constituting the work in its published form, i.e., the complete work as published, including metadata and authorship for which registration is not sought. Publication in an electronic only format requires submission of the digital file(s) in exact first-publication form and content.

(C) For works submitted electronically, any of the following file formats are acceptable for registration: PDF, TXT, WPD, DOC, TIF, SVG, JPG, XML, HTML, WAV, and MPEG family of formats, including MP3. This list of file formats is non-exhaustive and it may change, or be added to periodically. Changes will be noted in the list of acceptable formats on the Copyright Office Web site.

(D) Contact with the registration applicant may be necessary if the Copyright Office cannot access, view, or examine the content of any particular digital file that has been submitted for the registration of a work. For purposes of 17 U.S.C. 410(d), a deposit has not been received in the Copyright Office until a copy that can be reviewed by the Office is received.

§ 202.21 [Amended]43. Amend § 202.21 as follows:a. In paragraph (a), remove “and to” from the first sentence and add in its place “and” and remove the phrase “of these regulations”.b. In paragraph (g)(1)(i), remove “and description” and add in its place “and a description”.c. In paragraph (h), remove the phrase “of these regulations”.§ 202.22 [Amended]44. Amend § 202.22 in paragraph (f)(1)(i) by removing the phrase “not later than” and adding in its place the phrase “no later than”.§ 202.23 [Amended]45. Amend § 202.23 as follows:a. In paragraph (a)(1), remove “708(a)(11)” and add in its place “708(a)”.b. In paragraph (b)(2), remove “Chief, Information and Records Division of the Copyright Office,” add in its place “Director of the Office of Public Records and Repositories at the address specified in § 201.1(b)(1) of this chapter,”, and remove “(i)” and “(ii)”.c. In paragraph (c)(2), remove the word “of” after “§ 202.20”.d. In paragraph (e)(1), remove “708(a)(11)” and add in its place “708(a)” and add “of this chapter” after “§ 201.3(d)”.e. In paragraph (e)(2), add “of this chapter” after “§ 201.3(d)” and remove “Register of Copyrights” and add in its place “U.S. Copyright Office”.§ 202.24 [Amended]46. Amend § 202.24 as follows:a. In paragraphs (a)(1), (c)(1), and (c)(2) by removing “of these regulations”.b. In paragraph (d)(1)(i) by removing “section 407(d) of Title 17” and adding in its place “17 U.S.C. 407(d)”.Appendix B to Part 202[Amended]47 Amend Appendix B to Part 202 as follows:a. In the introductory text, designate the five undesignated paragraphs as a., b., c., d., and e., respectively.b. In paragraph III.A., add a colon to the end of the term “Film” and add periods to the ends of paragraphs III.A.1. through III.A.4.c. In paragraph III.B., add a colon to the end of the words “Video Formats” and add periods to the ends of paragraphs III.B.1. through III.B.4.d. In paragraph VI.A.1., remove “Vocal music:” and add in its place “Vocal music:”.e. In paragraph VI.A.1.a., remove “accompaniment—” and add in its place “accompaniment:”.f. In paragraph VI.A.2., remove “Instrumental music:” and add in its place “Instrumental music:”.g. In paragraph VIII.A., add a colon to the end of the word “Programs”.h. In paragraph VIII.A.3., remove “Format:” and add in its place “Format:”.i. In paragraph VIII.B.4., remove “Format” and add in its place “Format:”.j. In paragraph IX.A., add a colon to the end of the word “Serials”.k. In paragraph IX.A.1., add a colon to the end of the word “Format”.PART 203—FREEDOM OF INFORMATION ACT: POLICIES AND PROCEDURES48. The authority citation for part 203 continues to read as follows:Authority:

The administration of the copyright law was entrusted to the Library of Congress by an act of Congress in 1870, and the Copyright Office has been a separate department of the Library since 1897. The statutory functions of the Copyright Office are contained in and carried out in accordance with the Copyright Act.

(a) The Office of the Register of Copyrights has overall responsibility for the Copyright Office and its statutory mandate, specifically: For legal interpretation of the copyright law; administering the provisions of title 17 of the U.S.C.; promulgating copyright regulations; advising Congress and other government officials on domestic and international copyright policy and other intellectual property issues; determining personnel and other resource requirements for the Office; organizing strategic and annual program planning; and preparing budget estimates for inclusion in the budget of the Library of Congress and U.S. Government.

(b) The Office of the Chief of Operations is headed by the Chief of Operations (“COO”), who advises the Register on core business functions and coordinates and directs the day-to-day operations of the Copyright Office. The Office of the COO supervises financial controls, budget, human capital, statutory royalty investments, mandatory deposits and acquisitions, contracts, and strategic planning functions. This Office interacts with every other senior management office that reports to the Register and frequently coordinates and assesses institutional projects. The COO chairs the Copyright Office's operations committee. The following divisions fall under the oversight of the COO:

(1) The Receipt Analysis and Control Division is responsible for sorting, analyzing, and scanning incoming mail; creating initial records; labeling materials; and searching, assembling, and dispatching electronic and hardcopy materials and deposits to the appropriate service areas. The Division is responsible for operating the Copyright Office's central print room, mail functions, and temporary storage. The Division also processes all incoming fees and maintains accounts, related records, and reports involving fees received.

(2) The Licensing Division administers certain statutory licenses set forth in the Copyright Act. The Division collects royalty payments and examines statements of account for the cable statutory license (17 U.S.C. 111), the satellite statutory license for retransmission of distant television broadcast stations (17 U.S.C. 119), and the statutory license for digital audio recording technology (17 U.S.C. chapter 10). The Division also accepts and records documents associated with the use of the mechanical statutory license (17 U.S.C. 115).

(3) The Copyright Acquisitions Division administers the mandatory deposit requirements of the Copyright Act, acting as an intermediary between copyright owners of certain published works and the acquisitions staff in the Library of Congress. 17 U.S.C. 407. This Office creates and updates records for the copies received by the Copyright Office; demands particular works or particular formats of works as necessary; and administers deposit agreements between the Library and copyright owners.

(c) The Office of the General Counsel is headed by the General Counsel and Associate Register of Copyrights, who is an expert copyright attorney and one of four legal advisors to the Register. This Office assists the Register in carrying out critical work of the Copyright Office regarding the legal interpretation of the copyright law. The General Counsel liaises with the Department of Justice, other federal departments, and the legal community on a wide range of copyright matters including litigation and the administration of title 17 of the U.S.C. The General Counsel also has primary responsibility for the formulation and promulgation of regulations and the adoption of legal positions governing policy matters and the practices of the Copyright Office.

(d) The Office of Policy and International Affairs is headed by the Associate Register of Copyrights and Director of Policy and International Affairs, who is an expert copyright attorney and one of four legal advisors to the Register. This Office assists the Register with critical policy functions of the Copyright Office, including domestic and international policy analyses, legislative support, and trade negotiations. Policy and International Affairs represents the Copyright Office at meetings of government officials concerned with the international aspects of intellectual property protection, and provides regular support to Congress and its committees on statutory amendments and construction.

(e) The Office of Registration Policy and Practice is headed by the Associate Register of Copyrights and Director of Registration Policy and Practice, who is an expert copyright attorney and one of four legal advisors to the Register. This Office administers the U.S. copyright registration system and advises the Register of Copyrights on questions of registration policy and related regulations and interpretations of copyright law. This Office has three divisions: Literary, Performing Arts, and Visual Arts. It also has a number of specialized sections, for example, in the area of motion pictures. This Office executes major sections of the Compendium of Copyright Office Practices, particularly with respect to the examination of claims and related principles of law.

(f) The Office of Public Information and Education is headed by the Associate Register for Public Information and Education, who is an expert copyright attorney and one of four legal advisors to the Register. This Office informs and helps carry out the work of the Register and the Copyright Office in providing authoritative information about the copyright law to the public and establishing educational programs. The Office publishes the copyright law and other provisions of title 17 of the U.S.C.; maintains a robust and accurate public Web site; creates and distributes a variety of circulars, information sheets, and newsletters, including NewsNet; responds to public inquiries regarding provisions of the law, explaining registration policies, procedures, and other copyright-related topics upon request; plans and executes a variety of educational activities; and engages in outreach with various copyright community stakeholders.

(g) The Office of Public Records and Repositories is headed by the Director, who is an expert in public administration and one of the Register's top business advisors. This Office is responsible for carrying out major provisions of title 17 of the U.S.C., including establishing records policies; ensuring the storage and security of copyright deposits, both analog and digital; recording licenses and transfers of copyright ownership; preserving, maintaining, and servicing copyright-related records; researching and providing certified and non-certified reproductions of copyright deposits; and maintaining the official records of the Copyright Office. Additionally, the Office engages regularly in discussions with leaders in the private and public sectors regarding issues of metadata, interoperability, data management, and open government.

(h) The Office of the Chief Information Officer is headed by the Chief Information Officer (“CIO”), who is the Register's top advisor on the development and implementation of technology policy and infrastructure. The Office of the CIO provides strategic leadership and direction for necessary planning, design, development, and implementation of the Copyright Office's automated initiatives. The Office of the CIO is a liaison to the central technology office of the Library of Congress, which administers the Copyright Office's networks and communications. The CIO also supervises the Copyright Technology Office. The Copyright Technology Office maintains certain Copyright Office enterprise-wide IT systems for registration, recordation, public records management and access, and related public services, as well as certain internal and external help-desk functions.

(l) The U.S. Copyright Office makes certain documents and records available to the public in electronic format pursuant to 5 U.S.C. 552(a)(2). Copyright Office records in machine-readable form cataloged from January 1, 1978, to the present, including information regarding registrations and recorded documents, are available on the Office's Web site. Frequently requested Copyright Office circulars, announcements, recently proposed regulations, as well as final regulations are also available on the Office's Web site. The address for the Office's Web site is www.copyright.gov.

§ 203.4 [Amended]51. Amend § 203.4 as follows:a. In paragraph (c), remove “Avenue, SE” and add in its place “Avenue SE.”.b. In paragraph (d), remove from the second sentence “, Information and Publications Section, Information and Reference Division, Copyright Office, Library of Congress, Washington, DC 20559-6000,” and add in its place “at the address specified in § 201.1(c)(1) of this chapter”, remove “Avenue, SE,” and add in its place “Avenue SE.,” and remove in the last sentence “Office response” and add in its place “Office's response”.c. Revise paragraphs (f) and (g).d. In paragraph (i)(2), remove “ten (10)” and add in its place “10”.

The revisions read as follows:

§ 203.4 Methods of operation.

(f) The Office will respond to all properly marked mailed requests and all personally delivered written requests for records within 20 working days of receipt by the Supervisory Copyright Information Specialist. If it is determined that an extension of time greater than 10 working days is necessary to respond to a request due to unusual circumstances, as defined in paragraph (h) of this section, the Supervisory Copyright Information Specialist shall so notify the requester and give the requester the opportunity to:

(1) Limit the scope of the request so that it may be processed within 20 working days, or

(2) Arrange with the Office an alternative time frame for processing the request or a modified request.

(g) If a request is denied, the written notification will include the basis for the denial, names of all individuals who participated in the determination, and procedures available to appeal the determination. If a requester wishes to appeal a denial of some or all of his or her request for information, he or she must make an appeal in writing within 30 calendar days of the date of the Office's denial. The request should be directed to the General Counsel of the United States Copyright Office at the address specified in § 201.1(c)(1) of this chapter. The appeal should be clearly labeled “Freedom of Information Act Appeal.” The appeal shall include a statement explaining the basis for the appeal. Determinations of appeals will be set forth in writing and signed by the General Counsel or his or her delegate within 20 working days. If, on appeal, the denial is upheld in whole or in part, the written determination will include the basis for the appeal denial and will also contain a notification of the provisions for judicial review and the names of the persons who participated in the determination.

§ 203.6 [Amended]52. Amend § 203.6 as follows:a. In paragraph (a), remove “themseleves” from the last sentence and add in its place “themselves”.b. In paragraph (e),1. Form the first sentence, remove “amoun t” and add in its place “amount”, remove “praticable” and add in its place “practicable”, remove “his willingness” and add in its place “a willingness”,2. From the last sentence, remove “offer him” and add in its place “offer the requester”, remove “his request” and add in its place “the request”, and remove the “his needs” and add in its place “the requester's needs”.PART 204—PRIVACY ACT: POLICIES AND PROCEDURES53. The authority citation continues to read as follows:Authority:

17 U.S.C. 702, 5 U.S.C. 552(a).

§ 204.4 [Amended]54. Amend § 204.4 as follows:a. In paragraph (a), remove “Copyright Information Section, Copyright GC/I&R, P.O. Box 70400,, Washington, DC 20024” and add in its place “U.S. Copyright Office, P.O. Box 70400, Washington, DC 20024-0400”.b. In paragraph (b), remove “Office” and add in its place “Office's”.c. In paragraph (d), remove “Records” and add in its place “records”.§ 204.5 [Amended]55. Amend § 204.5 as follows:a. In paragraph (a), remove “Copyright Information Section, Copyright GC/I&R” and add in its place “U.S. Copyright Office”, remove “20024” and add in its place “20024-0400”, and remove the phrase “Avenue, SE” and add in its place the phrase “Avenue SE.”.b. In paragraph (b), remove “Office” and add in its place “Office's”.§ 204.7 [Amended]56. Amend § 204.7 as follows:a. In paragraph (a), remove “Copyright Information Section, Copyright GC/I&R” and add in its place “U.S. Copyright Office”, remove “20024” and add in its place “20024-0400” and remove “Avenue, SE” and add in its place “Avenue SE.”.b. In paragraph (b), remove “for Office response” and add in its place “for the Office's response”, remove “section 408(d) of Public Law 94-553” and add in its place “17 U.S.C. 408(d)” and remove “, the Office response” and add in its place “, the Office's response”.57. Revise § 204.8 to read as follows:§ 204.8 Appeal of refusal to correct or amend an individual's record.

(a) An individual who disagrees with a refusal of the Copyright Office to amend his or her record may request a review of the denial. The individual should submit a written appeal to the General Counsel of the United States Copyright Office at the address specified in § 201.1(c)(1) of this chapter. Appeals, and the envelopes containing them, should be plainly marked “Privacy Act Appeal.” Failure to so mark the appeal may delay the General Counsel's response. An appeal should contain a copy of the request for amendment or correction and a copy of the record alleged to be untimely, inaccurate, incomplete, or irrelevant.

(b) The General Counsel will issue a written decision granting or denying the appeal within 30 working days after receipt of the appeal unless, after showing good cause, the General Counsel extends the 30-day period. If the appeal is granted, the requested amendment or correction will be made promptly. If the appeal is denied, in whole or in part, the General Counsel's decision will set forth reasons for the denial. Additionally, the decision will advise the requester that he or she has the right to file with the Copyright Office a concise statement of his or her reasons for disagreeing with the refusal to amend the record and that such statement will be attached to the requester's record and included in any future disclosure of such record. If the requester is dissatisfied with the agency's final determination, the individual may bring a civil action against the Office in the appropriate United States district court.

PART 205—LEGAL PROCESSES58. The authority citation for part 205 continues to read as follows:Authority:

17 U.S.C. 702.

59. Revise § 205.1 to read as follows:§ 205.1 Definitions.

For the purpose of this part:

Demand means an order, subpoena or any other request for documents or testimony for use in a legal proceeding.

Document means any record or paper held by the Copyright Office, including, without limitation, official letters, deposits, recordations, registrations, publications, or other material submitted in connection with a claim for registration of a copyrighted work.

Employee means any current or former officer or employee of the Copyright Office, as well as any individual subject to the jurisdiction, supervision, or control of the Copyright Office.

General Counsel, unless otherwise specified, means the General Counsel and Associate Register of Copyrights or his or her designee.

Legal proceeding means any pretrial, trial, and post-trial stages of existing or reasonably anticipated judicial or administrative actions, hearings, investigations, or similar proceedings before courts, commissions, boards or other tribunals, foreign or domestic. This phrase includes all phases of discovery as well as responses to formal or informal requests by attorneys or others involved in legal proceedings. This phrase also includes state court proceedings (including grand jury proceedings) and any other state or local legislative and administrative proceedings.

Office means the Copyright Office, including any division, section, or operating unit within the Copyright Office.

Official business means the authorized business of the Copyright Office.

Testimony means a statement in any form, including a personal appearance before a court or other legal tribunal, an interview, a deposition, an affidavit or declaration under penalty of perjury pursuant to 28 U.S.C. 1746, a telephonic, televised, or videotaped statement or any response given during discovery or similar proceeding, which response would involve more than the production of documents, including a declaration under 35 U.S.C. 25 or a declaration under penalty of perjury pursuant to 28 U.S.C. 1746.

United States means the Federal Government, its departments and agencies, individuals acting on behalf of the Federal Government, and parties to the extent they are represented by the United States.

§ 205.2 [Amended]60. Amend § 205.2 as follows:a. In paragraph (a), remove “, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024-0400” and add in its place “at the address specified in § 201.1(c)(1) of this chapter”.b. In paragraph (b), remove the comma after “Avenue”.§§ 205.6 through 205.10[Reserved]61. Add and reserve §§ 205.6 through 205.10 to subpart A.§ 205.11 [Amended]62. Amend § 205.11 in paragraph (a) by removing “Office response” from the fourth sentence and adding in its place “the Office's response”.§ 205.13 [Amended]63. Amend § 205.13 by removing “, GC/I&R, P.O. Box 70400, Washington, DC 20024-0400” and adding in its place “at the address specified in § 201.1(c)(1) of this chapter” and by removing the comma after “Avenue”.§§ 205.14 through 205.20[Reserved]64. Add and reserve §§ 205.14 through 205.20 to subpart B.§ 205.22 [Amended]65. Amend § 205.22 as follows:a. In paragraph (a)(2), remove “(e.g., 37 CFR, Chapter II; Compendium II, Compendium of Copyright Office Practices” and add in its place “(e.g., 37 CFR, Chapter II; Compendium of U.S. Copyright Office Practices, Third Edition”, and remove “Copyright General Counsel” and add in its place “General Counsel of the Copyright Office”.b. In paragraph (b), remove “Counsel, no” and add in its place “Counsel of the Copyright Office, no” and remove “Copyright General Counsel” and add in its place “General Counsel of the Copyright Office”.c. In paragraph (c), remove “Copyright Office General Counsel” and add in its place “General Counsel of the Copyright Office” and remove “Copyright General Counsel” and add in its place “General Counsel”.d. In paragraph (f), remove the colon from the end of the paragraph heading, add in its place a period, and wrap up the next paragraph (f)(1).§ 205.23 [Amended]66. Amend § 205.23 as follows:a. Redesignate paragraph (b)(4) as paragraph (c).b. In newly redesignated paragraph (c), remove “these limitations” and add in its place “the limitations set forth in paragraph (b) of this section” and remove “of this part”.PART 210—COMPULSORY LICENSE FOR MAKING AND DISTRIBUTING PHYSICAL AND DIGITAL PHONORECORDS FOR NONDRAMATIC MUSICAL WORKS67. The authority citation for part 210 continues to read as follows:Authority:

17 U.S.C. 115, 702.

§ 210.15 [Amended]68. Amend § 210.15 introductory text by removing the term “Permanently” and adding in its place the term “permanently”.§ 210.17 [Amended]69. Amend § 210.17 as follows:a. In paragraph (d)(3)(ix), remove “Compact” and add in its place “compact” and remove “Limited” and add in its place “limited”.b. In paragraph (h), remove “6” from the second sentence and add in its place “six”.PART 211—MASK WORK PROTECTION70. The authority citation for part 211 is revised to read as follows:Authority:

17 U.S.C. 702, 908.

§ 211.1 [Amended]71. Amend § 211.1 in paragraph (a), by removing “shall be addressed to: Library of Congress, Department MW, Washington, DC 20540” and adding in its place “should be sent to the address specified in § 201.1(b) of this chapter”.73. Amend § 211.4 by revising paragraph (b)(1), the introductory text of paragraph (d), and paragraph (d)(2) to read as follows:§ 211.4 Registration of claims of protection in mask works.

(b) * * *

(1) For purposes of registration of mask work claims, the Register of Copyrights has designated “Form MW” to be used for all applications. Copies of the form are available free from the Copyright Office Web site or upon request to the Copyright Information Section, U.S. Copyright Office, Library of Congress, Washington, DC 20559-6000.

(d) Registration as a single work. Subject to the exception specified in paragraph (c)(2) of this section, for purposes of registration on a single application and upon payment of a single fee, the following shall be considered a single work:

(2) In the case of a mask work that has been commercially exploited: All original mask work elements fixed in a semiconductor chip product at the time that product was first commercially exploited and in which the owner or owners of the mask work is or are the same.

(1) Mask works commercially exploited. For commercially exploited mask works no more than two layers of each five or more layers in the work. In lieu of the visually perceptible representations required under paragraph (b)(1) of this section, identifying portions of the withheld material must be submitted. For these purposes, “identifying portions” shall mean:

(i) A printout of the mask work design data pertaining to each withheld layer, reproduced in microform; or

(ii) Visually perceptible representations in accordance with paragraph (b)(1)(i), (ii), or (iii) of this section with those portions containing sensitive information maintained under a claim of trade secrecy blocked out, provided that the portions remaining are greater than those which are blocked out.

(2) Mask work not commercially exploited. (i) For mask works not commercially exploited falling under paragraph (b)(2)(i) of this section, any layer may be withheld. In lieu of the visually perceptible representations required under paragraph (b)(2) of this section, “identifying portions” shall mean:

(A) A printout of the mask work design data pertaining to each withheld layer, reproduced in microform, in which sensitive information maintained under a claim of trade secrecy has been blocked out or stripped; or

(B) Visually perceptible representations in accordance with paragraph (b)(2)(i) of this section with those portions containing sensitive information maintained under a claim of trade secrecy blocked out, provided that the portions remaining are greater than those which are blocked out.

(ii) The identifying portions shall be accompanied by a single photograph of the top or other visible layers of the mask work fixed in a semiconductor chip product in which the sensitive information maintained under a claim of trade secrecy has been blocked out, provided that the blocked out portions do not exceed the remaining portions.

PART 212—PROTECTION OF VESSEL DESIGNS75. The authority citation for part 212 continues to read as follows:Authority:

17 U.S.C. chapter 13.

76. Revise the part heading as set forth above.77. In part 212 remove the terms “hull” and “hulls” each place they appear.§ 212.1 [Amended]78. Amend § 212.1 by removing “vessel” and adding in its place “vessels”.§ 212.2 [Amended]79. Amend § 212.2 by removing “vessel” and adding in its place “vessels”.§ 212.3 [Amended]80. Amend § 212.3 in paragraph (h) introductory text by removing “6” and adding in its place “six”.§ 212.4 [Amended]81. In paragraph (a)(2), add “hull” after “vessel”.§ 212.5 [Amended]82. Amend § 212.5 as follows:a. In paragraphs (a) through (c), remove “of a vessel” and add in its place “of a vessel design”.b. In paragraph (d), remove “to: Dept. D-VH, Vessel Hull Registration, P.O. Box 71380, Washington, DC 20024-1380” and add in its place “to the address specified in § 201.1(b)(2) of this chapter”.§ 212.6 [Amended]83. Amend § 212.6 by removing “design protection of vessel” and adding in its place “the protection of vessel designs”.§ 212.8 [Amended]84. Amend § 212.8 as follows:a. In paragraph (c)(1)(iv), remove “designers of the vessel” and add in its place “designers of the vessel design”.b. In paragraph (c)(2), remove “he” and add in its place “the” and remove the comma after “Avenue”.PARTS 253, 255, 258, 260-263, and 270—[REMOVED AND RESERVED]85. Remove and reserve parts 253, 255, 258, 260, 261, 262, 263, and 270.Dated: August 23, 2016.Sarang V. Damle,General Counsel and Associate Register of Copyrights, U.S. Copyright Office.[FR Doc. 2016-20495 Filed 9-30-16; 8:45 am] BILLING CODE 1410-30-PENVIRONMENTAL PROTECTION AGENCY40 CFR Parts 52 and 70[EPA-R07-OAR-2016-0529; FRL-9953-33-Region 7]Approval of Missouri's Air Quality Implementation Plans and Operating Permits Program; Greenhouse Gas Tailoring Rule and Non-Substantive Definition and Language ChangesAGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

Environmental Protection Agency (EPA) is proposing to approve revisions to the Missouri State Implementation Plan (SIP) and the 40 CFR part 70 operating permits program. EPA is proposing to approve revisions to two Missouri rule(s) entitled, “Construction Permits Required,” and “Operating Permits.” This proposed action is consistent with the July 12, 2013, U.S. Court of Appeals for the District of Columbia and the June 23, 2014, U.S. Supreme Court actions regarding Greenhouse Gas Prevention of Significant Deterioration and Title V Permitting. This action makes non-substantive changes to definitions, and language clarifications.

DATES:

Comments must be received by November 2, 2016.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2016-0529, http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

This document proposes to take action to approve revisions to the Missouri Title V Operating Permits Program and the Missouri SIP. We have published a direct final rule approving the State's SIP revision(s) in the “Rules and Regulations” section of this Federal Register, because we view this as a noncontroversial action and anticipate no relevant adverse comment. We have explained our reasons for this action in the preamble to the direct final rule. If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

The Environmental Protection Agency (EPA) proposes to approve a revision to the Wyoming hospital/medical/infectious waste incinerator (HMIWI) Section 111(d)/129 plan (the “plan”). The revision contains a modified state rule for solid waste combustion that was updated as a result of the October 6, 2009, amendments to federal emission guidelines (EG) and New Source Performance Standards (NSPS), 40 CFR part 60, subparts Ce and Ec, respectively. This revision and approval action relate only to HMIWI units.

DATES:

Written comments must be received on or before November 2, 2016.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R08-OAR-2016-0377, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.,) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

In the “Rules and Regulations” section of this Federal Register, the EPA is approving Wyoming's HMIWI plan revision as a direct final rule without prior proposal because the agency views this as a noncontroversial SIP revision and anticipates no adverse comments. A detailed rationale for the approval is set forth in the preamble to the direct final rule. If the EPA receives no adverse comments, the EPA will not take further action on this proposed rule. If the EPA receives adverse comments, the EPA will withdraw the direct final rule and it will not take effect. The EPA will address all public comments in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if the EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations Section of this Federal Register.

This document was received for publication by the Office of the Federal Register on September 26, 2016.

[FR Doc. 2016-23586 Filed 9-30-16; 8:45 am]BILLING CODE 6560-50-P81191Monday, October 3, 2016NoticesCOMMISSION ON CIVIL RIGHTSNotice of Public Meeting of the Minnesota Advisory Committee for Review and Discussion of a Project Proposal To Study Civil Rights and Police Relations in MinnesotaAGENCY:

U.S. Commission on Civil Rights.

ACTION:

Announcement of meeting.

SUMMARY:

Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Minnesota Advisory Committee (Committee) will hold a meeting on Monday, October 31, 2016, at 1:00 p.m. CDT for the purpose of reviewing and discussing a project proposal to study civil rights and police relations in Minnesota.

DATES:

The meeting will be held on Monday, October 31, 2016, at 1:00 p.m. CDT.

PUBLIC CALL INFORMATION:

Dial: 877-857-6161, Conference ID: 6681139

FOR FURTHER INFORMATION CONTACT:

Melissa Wojnaroski, DFO, at mwojnaroski@usccr.gov or 312-353-8311.

SUPPLEMENTARY INFORMATION:

Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 877-857-6161, conference ID: 6681139. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at callen@usccr.gov. Persons who desire additional information may contact the Regional Programs Unit at (312) 353-8311.

Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Minnesota Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=256). Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

AgendaWelcome and IntroductionsDiscussion of project proposal: Civil Rights and Police Relations in MinnesotaPublic CommentFuture Plans and ActionsAdjournmentDated: September 27, 2016.David Mussatt,Chief, Regional Programs Unit.[FR Doc. 2016-23730 Filed 9-30-16; 8:45 am] BILLING CODE PCOMMISSION ON CIVIL RIGHTSNotice of Public Meeting of the Indiana Advisory Committee for a Meeting for Final Review and Approval of the Committee's Report on Civil Rights and the School to Prison Pipeline in the StateAGENCY:

U.S. Commission on Civil Rights.

ACTION:

Announcement of meeting.

SUMMARY:

Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Indiana Advisory Committee (Committee) will hold a meeting on Tuesday, November 15, 2016, at 4:00 p.m. EST for the purpose of discussing a draft report regarding the school to prison pipeline in the state.

DATES:

The meeting will be held on Tuesday, November 15, 2016, at 4:00 p.m. EST

PUBLIC CALL INFORMATION:

Dial: 888-455-2265, Conference ID: 3309385

FOR FURTHER INFORMATION CONTACT:

Melissa Wojnaroski, DFO, at mwojnaroski@usccr.gov or 312-353-8311

SUPPLEMENTARY INFORMATION:

Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-455-2265, conference ID: 3309385. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

Members of the public are also entitled to submit written comments; the comments must be received in the regional office one week prior to the start of the meeting, by Tuesday November 8, 2016. Written comments may be mailed to the Regional Programs Unit Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at callen@usccr.gov. Persons who desire additional information may contact the Regional Programs Unit Office at (312) 353-8311.

Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Indiana Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=247). Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Regional Programs Unit Office at the above email or street address.

AgendaWelcome and IntroductionsCivil Rights Report, Final Review and ApprovalCivil Rights and the School to Prison Pipeline in IndianaPublic CommentFuture Plans and ActionsAdjournmentDated: September 27, 2016.David Mussatt,Chief, Regional Programs Unit.[FR Doc. 2016-23729 Filed 9-30-16; 8:45 am] BILLING CODE 6335-01-PCOMMISSION ON CIVIL RIGHTSNotice of Public Meeting of the Indiana Advisory Committee for a Meeting To Discuss an Updated Draft Report on Civil Rights and the School to Prison Pipeline in the StateAGENCY:

U.S. Commission on Civil Rights.

ACTION:

Announcement of meeting.

SUMMARY:

Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Indiana Advisory Committee (Committee) will hold a meeting on Wednesday, October 19, 2016, at 2:00pm EDT for the purpose of discussing a draft report regarding the school to prison pipeline in the state.

DATES:

The meeting will be held on Wednesday, October 19, 2016, at 2:00 p.m. EDT.

Public call information: Dial: 888-455-2265, Conference ID: 3309385.

FOR FURTHER INFORMATION CONTACT:

Melissa Wojnaroski, DFO, at mwojnaroski@usccr.gov or 312-353-8311.

SUPPLEMENTARY INFORMATION:

Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-455-2265, conference ID: 3309385. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at callen@usccr.gov. Persons who desire additional information may contact the Regional Programs Unit Office at (312) 353-8311.

Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Indiana Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=247). Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Regional Programs Unit Office at the above email or street address.

The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).

Burden Hours: No additional burden hours are requested under this nonsubstantive change request.

Needs and Uses: The American Community Survey collects detailed socioeconomic data from about 3.5 million households in the United States and 36,000 in Puerto Rico each year. The ACS also collects detailed socioeconomic data from about 195,000 residents living in Group Quarter (GQ) facilities. An ongoing data collection effort with an annual sample of this magnitude requires that the ACS continue research, testing, and evaluations aimed at improving data quality, achieving survey cost efficiencies, and improving ACS questionnaire content and related data collection materials. The ACS Methods Panel is a research program that is designed to address and respond to issues and survey needs. In line with the Census Bureau's goal to increase survey response rates through communications, the Census Bureau seeks to launch a pilot of a targeted digital advertising campaign. During the 2000 and 2010 decennial enumerations, the Census Bureau saw an uptick of ACS response rates.1 A year-over-year increase of 6.4 percentage points was observed in the Savannah, GA media market during the 2015 Census Site Test.2

1 Chesnut, J. & M. Davis. (2011). “Evaluation of the ACS Mail Materials and Mailing Strategy during the 2010 Census.” American Community Survey Research and Evaluation Program. U.S. Census Bureau.

Outside of decennial years, traditional broad-based advertising methods are cost-prohibitive because of the relatively small sample size for most Census Bureau surveys compared to the general population. With the advent of digital advertising tactics, however, the Census Bureau now has the potential opportunity to cost-effectively deliver promotional messages to individual households within a survey sample. The ACS offers a large enough national sample to field a test of such tactics and determine whether they lift response rates. If digital advertisements encourage recipients to respond to a survey early in the process of data collection, including responding online, then the Census Bureau will save money on costly follow-up efforts to collect data from nonrespondents, including sending Census Bureau interviewers to respondents' households in person. Offsetting data-collection costs in this way would ultimately save taxpayers money. Findings from this pilot campaign will have applications across the range of the Census Bureau's collection efforts as advertisements will not be survey-specific and will focus on the value of the Census Bureau's work in general.

We propose to execute the pilot campaign aiming to using the January and February 2017 ACS production samples. We will deliver targeted digital advertisements to a panel of in-sample residents that can be linked by household address to digital profiles (including cookies and/or device ID) by a third-party data vendor. This technique is an emerging standard in online advertising, in line with the advertising households receive from companies and organizations every day. We will place video, display banners, and paid social media advertisements. Linked households will be served ads shortly before they receive a mailed survey questionnaire and during the ACS data collection process. Ads will not directly call on recipients to complete the ACS or any particular survey, nor will they mention any survey by name. Rather they will be designed to create positive associations with the Census Bureau's work generally and make the case for the importance of completing a Census Bureau questionnaire if selected. When an advertisement is clicked, the user will be directed to a Census.gov web landing page featuring general information about the value of the Census Bureau's work and a link to the “Are You in a Survey?” page.3

3 See https://www.census.gov/programs-surveys/are-you-in-a-survey.html.

The purpose of this test is to study the impact of these changes on self-response behavior and assess any potential savings overall or with subgroups. The advertisements will include a mix of online video, banner display ads, and paid social media content on both desktop and mobile devices. They will be displayed around the web on various Web sites targeted to linked households in the treatment groups. Ad serving will be optimized based on audience reach and user engagement with the ads (measured in terms of video and click metrics). The optimal media mix will be applied evenly across both treatments. We will prioritize rich media placements including video and social video over standard placements such as banner display, with the goal to maximize video advertising to tell a compelling story to raise awareness of the Census Bureau's work.

This pilot will include two experimental treatments (a high-spend group and a low-spend group) as well as a control group. Households in the high-spend group will receive roughly twice the number of advertisement exposures as households in the low-spend treatment group, though the channel mix and content of the advertisements will remain the same between the two groups. The Control group will not receive any advertisements.

To field this test, we plan to use ACS production (clearance number: 0607-0810, expires 06/30/2018). Thus, there is no increase in burden from this test since the treatment will result in approximately the same burden estimate per interview (40 minutes). The ACS sample design consists of randomly assigning each monthly sample panel into 24 groups of approximately 12,000 addresses each. Each group, called a methods panel group, within a monthly sample is representative of the full monthly sample. Each monthly sample is a representative subsample of the entire annual sample and is representative of the sampling frame.

The test will include two months of production sample (aiming for January and February 2017). We will choose eight randomly selected methods panel groups per month for each of the two experimental treatments; the remaining eight methods panel groups will be the control. Over the two production months, each treatment will use 16 methods panel groups, or a mail out sample of roughly 192,000 addresses, which will be used for linking to establish eligibility for micro targeted digital advertising. We estimate that approximately 31 percent of the mailable addresses will be eligible for digital advertising, which is approximately 30,000 addresses for each of the two experimental treatments per month.

We will compare the Internet return rates at the cut date for the replacement mailing, the Internet, mail, and self-response return rates before the start of Computer Assisted Telephone Interviewing (CATI), and the Internet, mail, self-response, and CATI return rates prior to the start of Computer Assisted Personal Interviewing (CAPI). We will compare the self-response and CAPI return rates as well as the overall response rates when all data collection activities end. Additionally, the overall response rate will be calculated for all sample addresses. For each comparison, we will use α = 0.1 and a two-tailed test so that we can measure the impact on the evaluation measure in either direction with 80 percent power. Based on previous year's data for the January and February panels we calculated effective sample sizes. We assumed an Undeliverable as Addressed (UAA) rate of 18.0 percent (these addresses may be advertised to, but will be removed from self-response analysis because they do not have an opportunity to respond), a self-response rate of 57.5 percent for all three groups, a CATI response rate of 25 percent, and a CAPI response rate of 85 percent. We expect to be able to detect self-response differences between the high- and low-spend treatment panel of 0.8 percentage points, and between a treatment panel and the control on the order of 0.8 percentage points. Additional metrics of interest include overall costs and response rates by subgroups.

Affected Public: Individuals or households.

Frequency: One-time test as part of the monthly American Community Survey.

Respondent's Obligation: Mandatory.

Legal Authority: Title 13, United States Code, Sections 141, 193, and 221.

This information collection request may be viewed at www.reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA_Submission@omb.eop.gov or fax to (202) 395-5806.

In accordance with statutes on ratings for performance appraisals, the Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of the Departmental Performance Review Board. The Performance Review Board is responsible for reviewing performance appraisals and ratings of Senior Executive Service (SES) members and making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

DATES:

The period of appointment for those individuals selected for the Departmental Performance Review Board begins on October 3, 2016.

In accordance with Ratings for Performance Appraisals, 5 U.S.C. 4314(c)(4), the Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of the Departmental Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and ratings of Senior Executive Service (SES) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

The name, position title, and type of appointment of each member of the Performance Review Board are set forth below:

1. Jon Alexander, Deputy Director, Financial Management Systems, Career SES2. Dennis Alvord, Senior Advisor for Policy and Program Integration, Career SES3. Stephen Burke, Chief Financial Officer and Director for Administration, Career SES4. Kathleen James, Chief Administrative Officer, Career SES5. Lauren Leonard, Director of the Office of White House Liaison and Senior Advisor to the Secretary, Noncareer SES6. Holly Vineyard, Deputy Assistant Secretary for Global Markets, Career SESDated: September 20, 2016.Denise A. Yaag,Director, Office of Executive Resources, Office of Human Resources Management, Office of the Secretary/Office of the CFO/ASA, Department of Commerce.[FR Doc. 2016-23659 Filed 9-30-16; 8:45 am] BILLING CODE 3510-25-PDEPARTMENT OF COMMERCEOffice of the SecretaryMembership of the Performance Review Board for the Office of the SecretaryAGENCY:

Office of the Secretary, Department of Commerce.

ACTION:

Notice of membership on the Office of the Secretary Performance Review Board.

SUMMARY:

In accordance with 5 U.S.C. 4314(c)(4), the Office of the Secretary, Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of the Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and ratings of Senior Executive Service (SES) and Senior Level (SL) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

DATES:

The period of appointment for those individuals selected for the Office of the Secretary Performance Review Board begins on October 3, 2016.

In accordance with 5 U.S.C. 4314(c)(4), the Office of the Secretary, Department of Commerce (DOC), announces the appointment of those individuals who have been selected to serve as members of the Office of the Secretary Performance Review Board. The Performance Review Board is responsible for (1) reviewing performance appraisals and ratings of Senior Executive Service (SES) and Senior Level (SL) members and (2) making recommendations to the appointing authority on other performance management issues, such as pay adjustments, bonuses and Presidential Rank Awards. The appointment of these members to the Performance Review Board will be for a period of twenty-four (24) months.

DATES:

The period of appointment for those individuals selected for the Office of the Secretary Performance Review Board begins on October 3, 2016. The name, position title, and type of appointment of each member of the Performance Review Board are set forth below:

On May 26, 2016, Deere & Company submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board for its facility within Subzone 133F, in Dubuque, Iowa.

The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (81 FR 39890, June 20, 2016). The FTZ Board has determined that no further review of the activity is warranted at this time. The production activity described in the notification is authorized, subject to the FTZ Act and the Board's regulations, including Section 400.14.

Enforcement and Compliance, International Trade Administration, Department of Commerce.

SUMMARY:

Based on affirmative final determinations by the Department of Commerce (the Department) and the International Trade Commission (ITC), the Department is issuing countervailing duty (CVD) orders on certain hot-rolled steel flat products (hot-rolled steel) from Brazil and the Republic of Korea (Korea). In addition, the Department is amending its final affirmative determination with respect to Korea to correct the rate assigned to POSCO.

In accordance with section 705(a) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.210(c), on August 4, 2016, the Department made final determinations that countervailable subsidies are being provided to producers and exporters of hot-rolled steel from Brazil and Korea.1 Pursuant to section 705(d) of the Act, the Department published the affirmative final determinations on August 12, 2016.2

1 Pursuant to section 735(c)(2) of the Act, we have terminated the countervailing duty investigation of hot-rolled steel from Turkey because the ITC found imports subsidized by the government of Turkey to be negligible, see Letter to Christian Marsh, Deputy Assistant Secretary of Commerce for Enforcement and Compliance, from Irving Williamson, Chairman of the U.S. International Trade Commission, regarding antidumping and countervailing duty investigations concerning imports of certain hot-rolled steel flat products from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom (Investigation Nos. 701-TA-545-547 and 731-TA-1291-1297 (September 26, 2016) (ITC Letter).

On August 12, 2016, Hyundai Steel and POSCO timely filed ministerial error comments, alleging that the Department made errors in the final determination of the CVD investigation of hot-rolled steel from Korea. On August 17, 2016, Nucor Corporation (Petitioner) filed rebuttal comments. We analyzed the allegations submitted by Hyundai Steel and POSCO, and determined that one ministerial error exists, as defined by section 705(e) of the Act and 19 CFR 351.224(f).3See “Amendment to the Korea Final Determination” section below for further discussion.

On September 26, 2016, the ITC notified the Department of its final determinations that an industry in the United States is materially injured by reason of subsidized imports of subject merchandise from Brazil and Korea, within the meaning of section 705(b)(1)(A)(i) of the Act and that critical circumstances do not exist with respect to imports of subject merchandise from Brazil.4

4See ITC Letter.

Scope of the Orders

The products covered by these orders are certain hot-rolled steel flat products. For a complete description of the scope of the orders, see Appendix I.

Amendment to the Korea CVD Final Determination

As discussed above, after analyzing the comments received from Hyundai Steel and POSCO, we determined, in accordance with section 705(e) of the Act and 19 CFR 351.224(f), that we made a ministerial error with regard to certain calculations in the Korea CVD Final Determination with respect to POSCO. This amended final CVD determination corrects these errors and revises the ad valorem subsidy rate for POSCO to 58.68 percent (from 57.04 percent).5 There is no change to the “all others” rate because POSCO's rate was determined entirely under section 776 of the Act, and therefore, excluded from the “all others” rate calculation.

In accordance with sections 705(b)(1)(A)(i), and 705(d) of the Act, the ITC has notified the Department of its final determinations that the industry in the United States producing hot-rolled steel is materially injured by reason of subsidized imports of hot-rolled steel from Brazil and Korea, and that critical circumstances do not exist with respect to imports of subject merchandise from Brazil.6 Therefore, in accordance with section 705(c)(2) of the Act, we are publishing these CVD orders.

6See ITC Letter.

Brazil

As a result of the ITC's final determinations, in accordance with section 706(a) of the Act, the Department will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by the Department, countervailing duties on unliquidated entries of hot-rolled steel from Brazil entered, or withdrawn from warehouse, for consumption on or after January 15, 2016, the date on which the Department published its preliminary affirmative countervailing duty determinations in the Federal Register,7 and before May 14, 2016, the date on which the Department instructed CBP to discontinue the suspension of liquidation in accordance with section 703(d) of the Act. Section 703(d) of the Act states that the suspension of liquidation pursuant to a preliminary determination may not remain in effect for more than four months. Therefore, entries of hot-rolled steel from Brazil made on or after May 14, 2016, and prior to the date of publication of the ITC's final determination in the Federal Register, are not liable for assessment of countervailing duties due to the Department's discontinuation, effective May 14, 2016, of the suspension of liquidation.

Because the Department's preliminary determination in the Korea CVD investigation was negative, we did not instruct CBP to suspend liquidation with regard to entries of hot-rolled steel from Korea.8 The Department's final determination was affirmative, and therefore, we directed CBP to suspend liquidation.9 Therefore, with regard to Korea, we will direct CBP to assess, upon further instruction by the Department, countervailing duties on unliquidated entries of hot-rolled steel entered, or withdrawn from warehouse, for consumption on or after August 12, 2016, the date on which the Department published the Korea CVD Final Determination in the Federal Register.

In accordance with section 706 of the Act, we will direct CBP to reinstitute the suspension of liquidation of hot-rolled steel from Brazil effective on the date of publication of the ITC's notice of final determinations in the Federal Register, and to continue the suspension of liquidation of hot-rolled steel from Korea, effective on the date of publication of the Department's notice of final determination in the Federal Register. We will also direct CBP to assess, upon further instruction by the Department, pursuant to section 706(a)(1) of the Act, countervailing duties for each entry of the subject merchandise in an amount based on the net countervailable subsidy rates for the subject merchandise.

Critical Circumstances

With regard to the ITC's negative critical circumstances determination on imports of hot-rolled steel from Brazil, we will instruct CBP to lift suspension and to refund any cash deposits made to secure the payment of estimated countervailing duties with respect to entries of the subject merchandise entered, or withdrawn from warehouse for consumption on or after October 17, 2015 (i.e., 90 days prior to the date of the publication of the CVD Preliminary Determination), but before January 15, 2016 (i.e., the date of publication of the CVD Preliminary Determination).

On or after the date of publication of the ITC's final injury determinations in the Federal Register, CBP must require, at the same time as importers would normally deposit estimated duties on this merchandise, a cash deposit equal to the rates noted below:

This notice constitutes the CVD orders with respect to hot-rolled steel from Brazil and Korea, pursuant to section 706(a) of the Act. Interested parties can find a list of countervailing duty orders currently in effect at http://enforcement.trade.gov/stats/iastats1.html.

These orders are issued and published in accordance with section 706(a) of the Act and 19 CFR 351.211(b).

Dated: September 27, 2016.Paul Piquado,Assistant Secretary for Enforcement and Compliance.Appendix I

The products covered by this order are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (e.g., in successively superimposed layers, spirally oscillating, etc.). The products covered also include products not in coils (e.g., in straight lengths) of a thickness of less than 4.75 mm and a width that is 12.7 mm or greater and that measures at least 10 times the thickness. The products described above may be rectangular, square, circular, or other shape and include products of either rectangular or non-rectangular cross-section where such cross-section is achieve subsequent to the rolling process, i.e., products which have been “worked after rolling” (e.g., products which have been beveled or rounded at the edges). For purposes of the width and thickness requirements referenced above:

(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping 10 or countervailing duty 11 orders on Certain Cut-To-Length Carbon-Quality Steel Plate Products From the Republic of Korea (A-580-836; C-580-837), and

(2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

Steel products included in the scope of this order are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.

For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.

Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the orders if performed in the country of manufacture of the hot-rolled steel.

All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of these orders unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this order:

• Universal mill plates (i.e., hot-rolled, flat-rolled products not in coils that have been rolled on four faces or in a closed box pass, of a width exceeding 150 mm but not exceeding 1250 mm, of a thickness not less than 4.0 mm, and without patterns in relief);

• Products that have been cold-rolled (cold-reduced) after hot-rolling; 12

12 For purposes of this scope exclusion, rolling operations such as a skin pass, levelling, temper rolling or other minor rolling operations after the hot-rolling process for purposes of surface finish, flatness, shape control, or gauge control do not constitute cold-rolling sufficient to meet this exclusion.

• Ball bearing steels; 13

13 Ball bearing steels are defined as steels which contain, in addition to iron, each of the following elements by weight in the amount specified: (i) Not less than 0.95 nor more than 1.13 percent of carbon; (ii) not less than 0.22 nor more than 0.48 percent of manganese; (iii) none, or not more than 0.03 percent of sulfur; (iv) none, or not more than 0.03 percent of phosphorus; (v) not less than 0.18 nor more than 0.37 percent of silicon; (vi) not less than 1.25 nor more than 1.65 percent of chromium; (vii) none, or not more than 0.28 percent of nickel; (viii) none, or not more than 0.38 percent of copper; and (ix) none, or not more than 0.09 percent of molybdenum.

• Tool steels; 14 and

14 Tool steels are defined as steels which contain the following combinations of elements in the quantity by weight respectively indicated: (i) More than 1.2 percent carbon and more than 10.5 percent chromium; or (ii) not less than 0.3 percent carbon and 1.25 percent or more but less than 10.5 percent chromium; or (iii) not less than 0.85 percent carbon and 1 percent to 1.8 percent, inclusive, manganese; or (iv) 0.9 percent to 1.2 percent, inclusive, chromium and 0.9 percent to 1.4 percent, inclusive, molybdenum; or (v) not less than 0.5 percent carbon and not less than 3.5 percent molybdenum; or (vi) not less than 0.5 percent carbon and not less than 5.5 percent tungsten.

• Silico-manganese steels; 15

15 Silico-manganese steel is defined as steels containing by weight: (i) Not more than 0.7 percent of carbon; (ii) 0.5 percent or more but not more than 1.9 percent of manganese, and (iii) 0.6 percent or more but not more than 2.3 percent of silicon.

Enforcement and Compliance, International Trade Administration, Department of Commerce.

SUMMARY:

Based on affirmative final determinations by the Department of Commerce (the Department) and the International Trade Commission (the ITC), the Department is issuing antidumping duty orders on certain hot-rolled steel flat products (hot-rolled steel) from Australia, Brazil, Japan, the Republic of Korea, the Netherlands, the Republic of Turkey, and the United Kingdom. In addition, the Department is amending its final determinations of sales at less-than-fair-value (LTFV) from Australia, the Republic of Korea, and the Republic of Turkey, as a result of ministerial errors.

In accordance with sections 735(a) and 777(i)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.210(c), on August 4, 2016, the Department made affirmative final determinations in the LTFV investigations of certain hot-rolled steel flat from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom. Pursuant to section 735(d) of the Act, the Department published the affirmative final determinations on August 12, 2016. 1

On August 15, 2016, Petitioners 2 alleged that the Department made ministerial errors in the Australia Final.3 A ministerial error is defined as an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.4 On August 10, 2016, Petitioners and Hyundai Steel Company alleged that the Department made ministerial errors in the Korea Final. On August 15, 2016, POSCO submitted rebuttal comments to Petitioners' allegation, and Petitioners submitted rebuttal comments to Hyundai Steel Company's allegation.5 On August 11 and 12, 2016, mandatory respondent Colakoglu Metalurji A.S. and its affiliates (collectively Colakoglu),6 and Petitioners 7 alleged that the Department made ministerial errors in the Turkey Final. See “Amendment to the Australia Final Determination,” “Amendment to the Korea Final Determination,” and “Amendment to the Turkey Final Determinations” sections below for further discussion.

3See Letter to the Secretary of Commerce from U.S. Steel, dated August 15, 2016.

4See section 735(e) of the Act and 19 CFR 351.224(f).

5See Letter to the Secretary of Commerce from POSCO, dated August 15, 2016.

6See Letter to the Secretary of Commerce from Colakoglu, dated August 11, 2016.

7See Letter to the Secretary of Commerce from Petitioners, dated August 12, 2016.

On September 26, 2016, the ITC notified the Department of its affirmative determination that an industry in the United States is materially injured within the meaning of section 735(b)(1)(A)(i) of the Act, by reason of LTFV imports of hot-rolled steel from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom and of its determination that critical circumstances do not exist with respect to imports of hot-rolled steel from Brazil and Japan.8

The product covered by these orders is hot-rolled steel from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom. For a complete description of the scope of these orders, see Appendix I.

Amendment to Australia Final Determination

As discussed above, the Department reviewed the record and agrees that the two errors referenced in Petitioners' allegation constitute ministerial errors within the meaning of section 735(e) of the Act and 19 CFR 351.224(f).9 Specifically, the Department neglected to fully adjust BlueScope Steel Ltd.'s normal value for processing revenue and freight revenue.10 Pursuant to 19 CFR 351.224(e), the Department is amending the Australia Final to reflect the correction of the ministerial errors described above. Based on our correction, BlueScope Steel Ltd.'s weighted-average dumping margin increased from 29.37 percent to 29.58 percent. Because the Australian “all-others” rate is based solely on BlueScope Steel Ltd.'s dumping margin, the corrections noted above also increase the all-others rate determined in the Australia Final to 29.58 percent.11

The Department reviewed the record and agrees that the error referenced in Petitioners' allegation with respect to POSCO constitutes a ministerial error within the meaning of section 735(e) of the Act and 19 CFR 351.224(f), whereas neither the errors alleged by Hyundai Steel Company, nor the error alleged by Petitioners with respect to Hyundai Steel Company, are ministerial errors.12 Specifically, the programming code used in POSCO's final margin calculation program did not correctly implement certain revised indirect selling expense figures.13 Additionally, we find that the alleged errors regarding our final Hyundai Steel Company margin calculation are methodological, rather than ministerial, in nature.14 Pursuant to 19 CFR 351.224(e), the Department is amending the Korea Final to reflect the correction of the ministerial error in POSCO's final margin calculation described above. Based on our correction, POSCO's weighted-average dumping margin increased from 3.89 percent to 4.61 percent. Because the Korean “all-others” rate is based in part on POSCO's dumping margin, the correction noted above also increases the all-others rate determined in the Korea Final to 6.05 percent.15

The Department reviewed the record and agrees that the error referenced in Colakoglu's allegation and the errors referenced in Petitioners' allegation constitute ministerial errors within the meaning of section 735(e) of the Act and 19 CFR 351.224(f).16 Specifically, the Department utilized the incorrect denominator in its calculation of Colakoglu's indirect selling expenses ratio.17 Pursuant to 19 CFR 351.224(e), the Department is amending the Turkey Final to reflect the correction of the ministerial error described above. Based on our correction, Colakoglu's weighted-average dumping margin decreased from 7.15 percent to 6.77 percent.18 In reference to the ministerial errors alleged by Petitioners, the Department inadvertently omitted direct credit expenses from the calculation of Ereğli Demir ve Çelik Fabrikalari T.A.Ş. and its Affiliates (collectively Erdemir) comparison market gross unit price adjustment.19 The Department also erred in inputting raw data into the comparison market program to account for the control numbers that were sold but not produced during the POI for Erdemir.20 Finally, the Department incorrectly applied the export subsidy adjustment to the U.S. net price for Erdemir.21 Pursuant to 19 CFR 351.224(e), the Department is amending the Turkey Final to reflect the correction of the ministerial errors described above. However, because the ITC found imports subsidized by the government of Turkey to be negligible,22 thereby resulting in the termination of the companion countervailing duty investigation of hot-rolled steel from Turkey,23 we are further amending the Turkey Final to eliminate any adjustment to cash deposit rates for export subsidies.24 Based on our corrections, Erdemir's weighted-average dumping margin increased from 3.66 percent to 4.15 percent.25 Because the Turkish “all-others” rate is based on Colakoglu's and Erdemir's dumping margins, the corrections noted above also increases the all-others rate determined in the Turkey Final to 6.41 percent.26

In accordance with sections 735(b)(1)(A)(i) and 735(d) of the Act, the ITC has notified the Department of its final determinations that an industry in the United States is materially injured by reason of the LTFV imports of certain hot-rolled steel from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom.27 Therefore, in accordance with section 735(c)(2) of the Act, we are publishing these antidumping duty orders. Because the ITC determined that imports of hot-rolled steel from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom are materially injuring a U.S. industry, unliquidated entries of such merchandise from these countries, entered or withdrawn from warehouse for consumption, are subject to the assessment of antidumping duties.

27See ITC Letter.

Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom

In accordance with section 736(a)(1) of the Act, the Department will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by the Department, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price (or constructed export price) of the merchandise, for all relevant entries of hot-rolled steel from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom. Antidumping duties will be assessed on unliquidated entries of hot-rolled steel products from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom entered, or withdrawn from warehouse, for consumption on or after March 22, 2016, the date of publication of the preliminary determination, 28 but will not include entries occurring after the expiration of the provisional measures period and before publication of the ITC's final injury determination as further described below.

In accordance with section 735(c)(1)(B) of the Act, we will instruct CBP to continue to suspend liquidation on all relevant entries of hot-rolled steel from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom. These instructions suspending liquidation will remain in effect until further notice.

We will also instruct CBP to require cash deposits equal to the amounts as indicated below. Accordingly, effective on the date of publication of the ITC's final affirmative injury determination, CBP will require, at the same time as importers would normally deposit estimated duties on this subject merchandise, a cash deposit equal to the estimated weighted-average dumping margins listed below.29 The “all others” rate applies to all producers or exporters not specifically listed, as appropriate. For the purpose of determining cash deposit rates, the estimated weighted-average dumping margins for imports of subject merchandise from Brazil and Korea have been adjusted, as appropriate, for export subsidies found in the final determinations of the companion countervailing duty investigations of this merchandise imported from Brazil and Korea.30 For Turkey, as noted above, because of the ITC's finding of negligible subsidized imports, we have not made any adjustment to cash deposit rates for export subsidies for imports of subject merchandise from Turkey.31

29See section 736(a)(3) of the Act.

30See Brazil Final and Korea Final.

31See ITC Letter; see also Turkey Ministerial Error Memorandum.

Provisional Measures

Section 733(d) of the Act states that instructions issued pursuant to an affirmative preliminary determination may not remain in effect for more than four months, except where exporters representing a significant proportion of exports of the subject merchandise request the Department to extend that four-month period to no more than six months. At the request of exporters that account for a significant proportion of hot-rolled steel from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom, the Department extended the four-month period to six months in each case.32 In the underlying investigations, the Department published the preliminary determinations on March 22, 2016. Therefore, the extended period, beginning on the date of publication of the preliminary determination, ended on September 17, 2016. Furthermore, section 737(b) of the Act states that definitive duties are to begin on the date of publication of the ITC's final injury determination.

Therefore, in accordance with section 733(d) of the Act and our practice,33 we will instruct CBP to terminate the suspension of liquidation and to liquidate, without regard to antidumping duties, unliquidated entries of hot-rolled steel from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom entered, or withdrawn from warehouse, for consumption after September 17, 2016, until and through the day preceding the date of publication of the ITC's final injury determination in the Federal Register. Suspension of liquidation will resume on the date of publication of the ITC's final determination in the Federal Register.

With regard to the ITC's negative critical circumstances determination on imports of hot-rolled steel from Brazil and Japan, we will instruct CBP to lift suspension and to refund any cash deposits made to secure the payment of estimated antidumping duties with respect to entries of hot-rolled steel from Brazil and Japan entered, or withdrawn from warehouse, for consumption on or after December 23, 2015 (i.e., 90 days prior to the date of publication of the preliminary determinations), but before March 22, 2016 (i.e., the date of publication of the preliminary determinations).

Estimated Weighted-Average Dumping Margins

The weighted-average antidumping duty margin percentages are as follows:

This notice constitutes the antidumping duty orders with respect to hot-rolled steel from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom pursuant to section 736(a) of the Act. Interested parties can find a list of antidumping duty orders currently in effect at http://enforcement.trade.gov/stats/iastats1.html.

34 The cash deposit rates are adjusted to account for the applicable export subsidy rates.

35Id.

These orders are published in accordance with section 736(a) of the Act and 19 CFR 351.211(b).

Dated: September 27, 2016.Paul Piquado,Assistant Secretary for Enforcement and Compliance.Appendix IScope of the Orders

The products covered by these orders are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (e.g., in successively superimposed layers, spirally oscillating, etc.). The products covered also include products not in coils (e.g., in straight lengths) of a thickness of less than 4.75 mm and a width that is 12.7 mm or greater and that measures at least 10 times the thickness. The products described above may be rectangular, square, circular, or other shape and include products of either rectangular or non-rectangular cross-section where such cross-section is achieve subsequent to the rolling process, i.e., products which have been “worked after rolling” (e.g., products which have been beveled or rounded at the edges). For purposes of the width and thickness requirements referenced above:

(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping 36 or countervailing duty 37 orders on Certain Cut-To-Length Carbon-Quality Steel Plate Products From the Republic of Korea (A-580-836; C-580-837), and

36Notice of Amendment of Final Determinations of Sales at Less Than Fair Value and Antidumping Duty Orders: Certain Cut-To-Length Carbon-Quality Steel Plate Products From France, India, Indonesia, Italy, Japan and the Republic of Korea, 65 FR 6585 (February 10, 2000).

(2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

Steel products included in the scope of these orders are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

Unless specifically excluded, products are included in these scopes regardless of levels of boron and titanium.

For example, specifically included in these scopes are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.

Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of these orders if performed in the country of manufacture of the hot-rolled steel.

All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of these orders unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of these orders:

• Universal mill plates (i.e., hot-rolled, flat-rolled products not in coils that have been rolled on four faces or in a closed box pass, of a width exceeding 150 mm but not exceeding 1250 mm, of a thickness not less than 4.0 mm, and without patterns in relief);• Products that have been cold-rolled (cold-reduced) after hot-rolling; 38

38 For purposes of this scope exclusion, rolling operations such as a skin pass, levelling, temper rolling or other minor rolling operations after the hot-rolling process for purposes of surface finish, flatness, shape control, or gauge control do not constitute cold-rolling sufficient to meet this exclusion.

• Ball bearing steels; 39

39 Ball bearing steels are defined as steels which contain, in addition to iron, each of the following elements by weight in the amount specified: (i) Not less than 0.95 nor more than 1.13 percent of carbon; (ii) not less than 0.22 nor more than 0.48 percent of manganese; (iii) none, or not more than 0.03 percent of sulfur; (iv) none, or not more than 0.03 percent of phosphorus; (v) not less than 0.18 nor more than 0.37 percent of silicon; (vi) not less than 1.25 nor more than 1.65 percent of chromium; (vii) none, or not more than 0.28 percent of nickel; (viii) none, or not more than 0.38 percent of copper; and (ix) none, or not more than 0.09 percent of molybdenum.

• Tool steels; 40 and

40 Tool steels are defined as steels which contain the following combinations of elements in the quantity by weight respectively indicated: (i) More than 1.2 percent carbon and more than 10.5 percent chromium; or (ii) not less than 0.3 percent carbon and 1.25 percent or more but less than 10.5 percent chromium; or (iii) not less than 0.85 percent carbon and 1 percent to 1.8 percent, inclusive, manganese; or (iv) 0.9 percent to 1.2 percent, inclusive, chromium and 0.9 percent to 1.4 percent, inclusive, molybdenum; or (v) not less than 0.5 percent carbon and not less than 3.5 percent molybdenum; or (vi) not less than 0.5 percent carbon and not less than 5.5 percent tungsten.

• Silico-manganese steels; 41

41 Silico-manganese steel is defined as steels containing by weight: (i) Not more than 0.7 percent of carbon; (ii) 0.5 percent or more but not more than 1.9 percent of manganese, and (iii) 0.6 percent or more but not more than 2.3 percent of silicon.

Enforcement and Compliance, International Trade Administration, Department of Commerce.

SUMMARY:

In accordance with the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating the five-year review (“Sunset Review”) of the antidumping and countervailing duty (“AD/CVD”) order(s) listed below. The International Trade Commission (“the Commission”) is publishing concurrently with this notice its notice of Institution of Five-Year Review which covers the same order(s).

DATES:

Effective on October 1, 2016.

FOR FURTHER INFORMATION CONTACT:

The Department official identified in the Initiation of Review section below at AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230. For information from the Commission contact Mary Messer, Office of Investigations, U.S. International Trade Commission at (202) 205-3193.

SUPPLEMENTARY INFORMATION:

Background

The Department's procedures for the conduct of Sunset Reviews are set forth in its Procedures for Conducting Five-Year (“Sunset”) Reviews of Antidumping and Countervailing Duty Orders, 63 FR 13516 (March 20, 1998) and 70 FR 62061 (October 28, 2005). Guidance on methodological or analytical issues relevant to the Department's conduct of Sunset Reviews is set forth in Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Duty Proceedings; Final Modification, 77 FR 8101 (February 14, 2012).

Initiation of Review

In accordance with 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping and countervailing duty order(s):

As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Department's regulations, the Department's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Web site at the following address: “http://enforcement.trade.gov/sunset/.” All submissions in these Sunset Reviews must be filed in accordance with the Department's regulations regarding format, translation, and service of documents. These rules, including electronic filing requirements via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”), can be found at 19 CFR 351.303.1

This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.2 Parties are hereby reminded that revised certification requirements are in effect for company/government officials as well as their representatives in these segments.3 The formats for the revised certifications are provided at the end of the Final Rule. The Department intends to reject factual submissions if the submitting party does not comply with the revised certification requirements.

On April 10, 2013, the Department modified two regulations related to AD/CVD proceedings: the definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).4 Parties are advised to review the final rule, available at http://enforcement.trade.gov/frn/2013/1304frn/2013-08227.txt, prior to submitting factual information in these segments. To the extent that other regulations govern the submission of factual information in a segment (such as 19 CFR 351.218), these time limits will continue to be applied. Parties are also advised to review the final rule concerning the extension of time limits for submissions in AD/CVD proceedings, available at http://enforcement.trade.gov/frn/2013/1309frn/2013-22853.txt, prior to submitting factual information in these segments.5

Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d)). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation.

Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (“APO”) to file an APO application immediately following publication in the Federal Register of this notice of initiation. The Department's regulations on submission of proprietary information and eligibility to receive access to business proprietary information under APO can be found at 19 CFR 351.304-306.

Information Required From Interested Parties

Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the Federal Register of this notice of initiation by filing a notice of intent to participate. The required contents of the notice of intent to participate are set forth at 19 CFR 351.218(d)(1)(ii). In accordance with the Department's regulations, if we do not receive a notice of intent to participate from at least one domestic interested party by the 15-day deadline, the Department will automatically revoke the order without further review.6

6See 19 CFR 351.218(d)(1)(iii).

If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that all parties wishing to participate in a Sunset Review must file complete substantive responses not later than 30 days after the date of publication in the Federal Register of this notice of initiation. The required contents of a substantive response, on an order-specific basis, are set forth at 19 CFR 351.218(d)(3). Note that certain information requirements differ for respondent and domestic parties. Also, note that the Department's information requirements are distinct from the Commission's information requirements. Consult the Department's regulations for information regarding the Department's conduct of Sunset Reviews. Consult the Department's regulations at 19 CFR part 351 for definitions of terms and for other general information concerning antidumping and countervailing duty proceedings at the Department.

This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).

Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (“the Act”), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (“the Department”) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.

All deadlines for the submission of comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting date.

Respondent Selection

In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation Federal Register notice. Therefore, we encourage all parties interested in commenting on respondent selection to submit their APO applications on the date of publication of the initiation notice, or as soon thereafter as possible. The Department invites comments regarding the CBP data and respondent selection within five days of placement of the CBP data on the record of the review.

In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:

In general, the Department finds that determinations concerning whether particular companies should be “collapsed” (i.e., treated as a single entity for purposes of calculating antidumping duty rates) require a substantial amount of detailed information and analysis, which often require follow-up questions and analysis. Accordingly, the Department will not conduct collapsing analyses at the respondent selection phase of this review and will not collapse companies at the respondent selection phase unless there has been a determination to collapse certain companies in a previous segment of this antidumping proceeding (i.e., investigation, administrative review, new shipper review or changed circumstances review). For any company subject to this review, if the Department determined, or continued to treat, that company as collapsed with others, the Department will assume that such companies continue to operate in the same manner and will collapse them for respondent selection purposes. Otherwise, the Department will not collapse companies for purposes of respondent selection. Parties are requested to (a) identify which companies subject to review previously were collapsed, and (b) provide a citation to the proceeding in which they were collapsed. Further, if companies are requested to complete the Quantity and Value Questionnaire for purposes of respondent selection, in general each company must report volume and value data separately for itself. Parties should not include data for any other party, even if they believe they should be treated as a single entity with that other party. If a company was collapsed with another company or companies in the most recently completed segment of this proceeding where the Department considered collapsing that entity, complete quantity and value data for that collapsed entity must be submitted.

Deadline for Withdrawal of Request for Administrative Review

Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that, with regard to reviews requested on the basis of anniversary months on or after October 2016, the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.

The Department is providing this notice on its Web site, as well as in its “Opportunity to Request Administrative Review” notices, so that interested parties will be aware of the manner in which the Department intends to exercise its discretion in the future.

Opportunity To Request a Review: Not later than the last day of October 2016,1 interested parties may request administrative review of the following orders, findings, or suspended investigations, with anniversary dates in October for the following periods:

1 Or the next business day, if the deadline falls on a weekend, federal holiday or any other day when the Department is closed.

In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters. If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which was produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover.

Note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).

As explained in Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003), and Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694 (October 24, 2011) the Department clarified its practice with respect to the collection of final antidumping duties on imports of merchandise where intermediate firms are involved. The public should be aware of this clarification in determining whether to request an administrative review of merchandise subject to antidumping findings and orders.2

2See also the Enforcement and Compliance Web site at http://trade.gov/enforcement/.

Further, as explained in Antidumping Proceedings: Announcement of Change in Department Practice for Respondent Selection in Antidumping Duty Proceedings and Conditional Review of the Nonmarket Economy Entity in NME Antidumping Duty Proceedings, 78 FR 65963 (November 4, 2013), the Department clarified its practice with regard to the conditional review of the non-market economy (NME) entity in administrative reviews of antidumping duty orders. The Department will no longer consider the NME entity as an exporter conditionally subject to administrative reviews. Accordingly, the NME entity will not be under review unless the Department specifically receives a request for, or self-initiates, a review of the NME entity.3 In administrative reviews of antidumping duty orders on merchandise from NME countries where a review of the NME entity has not been initiated, but where an individual exporter for which a review was initiated does not qualify for a separate rate, the Department will issue a final decision indicating that the company in question is part of the NME entity. However, in that situation, because no review of the NME entity was conducted, the NME entity's entries were not subject to the review and the rate for the NME entity is not subject to change as a result of that review (although the rate for the individual exporter may change as a function of the finding that the exporter is part of the NME entity).

3 In accordance with 19 CFR 351.213(b)(1), parties should specify that they are requesting a review of entries from exporters comprising the entity, and to the extent possible, include the names of such exporters in their request.

Following initiation of an antidumping administrative review when there is no review requested of the NME entity, the Department will instruct CBP to liquidate entries for all exporters not named in the initiation notice, including those that were suspended at the NME entity rate.

All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”) on Enforcement and Compliance's ACCESS Web site at http://access.trade.gov.4 Further, in accordance with 19 CFR 351.303(f)(l)(i), a copy of each request must be served on the petitioner and each exporter or producer specified in the request.

The Department will publish in the Federal Register a notice of “Initiation of Administrative Review of Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation” for requests received by the last day of October 2016. If the Department does not receive, by the last day of October 2016, a request for review of entries covered by an order, finding, or suspended investigation listed in this notice and for the period identified above, the Department will instruct CBP to assess antidumping or countervailing duties on those entries at a rate equal to the cash deposit of (or bond for) estimated antidumping or countervailing duties required on those entries at the time of entry, or withdrawal from warehouse, for consumption and to continue to collect the cash deposit previously ordered.

For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.

This notice is not required by statute but is published as a service to the international trading community.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; public meeting.

SUMMARY:

The New England Fishery Management Council (Council) is scheduling a joint public meeting of its Monkfish Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

DATES:

This meeting will be held on Tuesday, October 18, 2016 at 9:30 a.m.

ADDRESSES:

The meeting will be held at the Hilton Garden Inn, One Thurber Street, Warwick, RI 02886; telephone: (401) 734-9600.

The Monkfish Committee will receive an update on Plan Development Team (PDT) analysis on Days-at-sea (DAS) allocation and trip limits. The will also receive an overview from the Monkfish PDT on draft alternatives and impacts for Framework 10 regarding specifications for FY 2017-19 and DAS allocation and/or possession limit alternatives. The Committee will select preferred alternatives for Framework 10 as well as review and discuss 5 year research priorities for monkfish. The will discuss other business, as necessary.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; public meeting.

SUMMARY:

The New England Fishery Management Council (Council) is scheduling a public meeting of its Skate Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

DATES:

This meeting will be held on Wednesday, October 19, 2016 at 9:30 a.m.

ADDRESSES:

The meeting will be held at the Hilton Garden Hotel, One Thurber Street, Warwick, RI 02886; telephone: (401) 734-9600.

The Committee will review and discuss the draft scoping document for the upcoming limited access amendment to the Northeast Skate Complex Fishery Management Plan. They will also develop recommendations for 2017 Council priorities as well as review and discuss 5 year research priorities for skates. Other business will be discussed. The Committee will also have a closed session to review Advisory Panel applications for 2018-20 and make recommendations for approval to the Council's Executive committee.

Special Accommodations

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; issuance of an incidental harassment authorization.

SUMMARY:

In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), notification is hereby given that we have issued an incidental harassment authorization (IHA) to the U.S. Air Force 86 Fighter Weapons Squadron (86 FWS) to incidentally harass marine mammals during Long Range Strike Weapons System Evaluation Program (LRS WSEP) activities in the Barking Sands Underwater Range Extension (BSURE) area of the Pacific Missile Range Facility (PMRF) at Kauai, Hawaii.

DATES:

This authorization is effective from October 1, 2016, through November 30, 2016.

FOR FURTHER INFORMATION CONTACT:

Laura McCue, Office of Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

An authorization for incidental takings for marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

The NDAA of 2004 (Public Law 108-136) removed the “small numbers” and “specified geographical region” limitations indicated earlier and amended the definition of harassment as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): (i) any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment).

Summary of Request

On May 12, 2016, NMFS received an application from 86 FWS for the taking of marine mammals, by harassment, incidental to the LRS WSEP within the PMRF in Kauai, Hawaii from September 1, 2016 through August 31, 2017. 86 FWS submitted a revised version of the renewal request on June 9, 2016 and June 20, 2016, which we considered adequate and complete. After completion of the application, the planned LRS WSEP training activities were pushed back to October 2016.

86 FWS proposes actions that include LRS WSEP test missions of the Joint Air-To-Surface Stand-off Missile (JASSM) and the Small Diameter Bomb-I/II (SDB-I/II) including detonations at the water surface. These activities qualify as military readiness activities under the MMPA.

The following aspects of the planned LRS WSEP training activities have the potential to take marine mammals: Munition strikes and detonation effects (overpressure and acoustic components). Take, by Level B harassment of individuals of dwarf sperm whale, pygmy sperm whale, Fraser's dolphin, and minke whale could potentially result from the specified activity. Additionally, 86 FWS has requested authorization for Level A Harassment of one individual dwarf sperm whale. 86 FWS's LRS WSEP training activities may potentially impact marine mammals at or near the water surface. In the absence of mitigation, marine mammals could potentially be injured or killed by exploding and non-exploding projectiles, falling debris, or ingestion of military expended materials. However, based on analyses provided in 86 FWS's 2016 application, 2016 Environmental Assessment (EA), and for reasons discussed later in this document, we do not anticipate that 86 FWS's LRS WSEP activities would result in any serious injury or mortality to marine mammals.

Description of the Specified ActivityOverview

86 FWS plans to conduct an air-to-surface mission in the BSURE area of the PMRF. The LRS WSEP test objective is to conduct operational evaluations of long range strike weapons and other munitions as part of LRS WSEP operations to properly train units to execute requirements within Designed Operational Capability Statements, which describe units' real-world operational expectations in a time of war. Due to threats to national security, increased missions involving air-to-surface activities have been directed by the Department of Defense (DoD). Accordingly, the U.S. Air Force needs to conduct operational evaluations of all phases of long range strike weapons within the U.S. Navy's Hawaii Range Complex (HRC). The actions will fulfill the Air Force's requirement to evaluate full-scale maneuvers for such weapons, including scoring capabilities under operationally realistic scenarios. LRS WSEP objectives are to evaluate air-to-surface and maritime weapon employment data, evaluate tactics, techniques, and procedures in an operationally realistic environment, and to determine the impact of tactics, techniques, and procedures on combat Air Force training. The munitions associated with the planned activities are not part of a typical unit's training allocations, and prior to attending a WSEP evaluation, most pilots and weapon systems officers have only dropped weapons in simulators or used the aircraft's simulation mode. Without WSEP operations, pilots would be using these weapons for the first time in combat. On average, half of the participants in each unit drop an actual weapon for the first time during a WSEP evaluation. Consequently, WSEP is a military readiness activity and is the last opportunity for squadrons to receive operational training and evaluations before they deploy.

Dates and Duration

86 FWS plans to schedule the LRS WSEP training missions over one day in October 2016. The planned missions would occur on a weekday during daytime hours only, with all missions occurring in one day. This IHA is valid from October 1, 2016 through November 30, 2016.

Specified Geographic Region

The specific planned impact area is approximately 44 nautical miles (nm) (81 kilometers (km)) offshore of Kauai, Hawaii, in a water depth of about 15,240 feet (ft) (4,645 meters (m)) (see Figure 2-2 of 86 FWS's application). All activities will take place within the PMRF, which is located in Hawaii off the western shores of the island of Kauai and includes broad ocean areas to the north, south, and west (see Figure 2-1 of 86 FWS's application). Within the PMRF, activities would occur in the BSURE area, which lies in Warning Area 188 (W-188).

NMFS provided detailed descriptions of the activity area in a previous notice for the proposed authorization (81 FR 44277) (July 7, 2016). The information has not changed between the notice of proposed authorization and this final notice announcing the issuance of the authorization.

Detailed Description of Activities

The LRS WSEP training missions, classified as military readiness activities, refer to the deployment of live (containing explosive charges) missiles from aircraft toward the water surface. The actions include air-to-surface test missions of the JASSM and the SDB-I/II including detonations at the water surface.

Aircraft used for munition releases would include bombers and fighter aircraft. Additional airborne assets, such as the P-3 Orion or the P-8 Poseidon, would be used to relay telemetry (TM) and flight termination system (FTS) streams between the weapon and ground stations. Other support aircraft would be associated with range clearance activities before and during the mission and with air-to-air refueling operations. All weapon delivery aircraft would originate from an out base and fly into military-controlled airspace prior to employment. Due to long transit times between the out base and mission location, air-to-air refueling may be conducted in either W-188 or W-189. Bombers, such as the B-1, would deliver the weapons, conduct air-to-air refueling, and return to their originating base as part of one sortie. However, when fighter aircraft are used, the distance and corresponding transit time to the various potential originating bases would make return flights after each mission day impractical. In these cases, the aircraft would temporarily (less than one week) park overnight at Hickam Air Force Base (HAFB) and would return to their home base at the conclusion of each mission set. The LRS WSEP missions scheduled for 2016 are planned to occur in one day. Approximately 10 Air Force personnel would be on temporary duty to support the mission.

Aircraft flight maneuver operations and weapon release would be conducted in W-188A boundaries of PMRF. Chase aircraft may be used to evaluate weapon release and to track weapons. Flight operations and weapons delivery would be in accordance with published Air Force directives and weapon operational release parameters, as well as all applicable Navy safety regulations and criteria established specifically for PMRF. Aircraft supporting LSR WSEP missions would primarily operate at high altitudes—only flying below 3,000 feet (914.1 m) for a limited time as needed for escorting non-military vessels outside the hazard area or for monitoring the area for protected marine species (e.g., marine mammals, sea turtles). Protected marine species aerial surveys would be temporary and would focus on an area surrounding the weapon impact point on the water. Post-mission surveys would focus on the area down current of the weapon impact location. Range clearance procedures for each mission would cover a much larger area for human safety. Weapon release parameters would be conducted as approved by PMRF Range Safety. Daily mission briefs would specify planned release conditions for each mission. Aircraft and weapons would be tracked for time, space, and position information. The 86 FWS test director would coordinate with the PMRF Range Safety Officer, Operations Conductor, Range Facility Control Officer, and other applicable mission control personnel for aircraft control, range clearance, and mission safety.

NMFS provided detailed descriptions of the components of the planned mission activities in a previous notice for the proposed authorization (81 FR 44277) (July 7, 2016). The information has not changed between the notice of proposed authorization and this final notice announcing the issuance of the authorization.

Initial phases of the LRS WSEP operational evaluations are planned for October 2016 and would consist of releasing only one live JASSM/JASSM-ER and up to eight SDB-Is in military controlled airspace (Table 1).

A typical mission day would consist of pre-mission checks, safety review, crew briefings, weather checks, clearing airspace, range clearance, mitigations/monitoring efforts, and other military protocols prior to launch of weapons. Potential delays could be the result of multiple factors including, but not limited to: Adverse weather conditions leading to unsafe take-off, landing, and aircraft operations, inability to clear the range of non-mission vessels or aircraft, mechanical issues with mission aircraft or munitions, or presence of protected species in the impact area. If the mission is cancelled due to any of these, one back-up day has also been scheduled as a contingency. These standard operating procedures are usually done in the morning, and live range time may begin in late morning once all checks are complete and approval is granted from range control. The range would be closed to the public for a maximum of four hours per mission day.

Comments and Responses

A notice of NMFS' proposal to issue an Authorization to 86 FWS published in the Federal Register on July 7, 2016 (81 FR 44277). During the 30-day public comment period, NMFS received comments from the Marine Mammal Commission (Commission) and one relevant comment from a private citizen. Following is the comment from the Commission and NMFS' response and the comment received from a private citizen and NMFS' response.

Comment 1: The Commission recommends that NMFS and the Air Force assess practicable ways to supplement the Air Force's mitigation and monitoring measures with PAM (passive acoustic monitoring), including obtaining access to the Navy's hydrophone array data at PMRF.

Response: NMFS agrees that the use of PAM would be beneficial for monitoring and mitigation for mission activities. For this one-day mission, NMFS considered the use of PAM for mitigation and monitoring but, due to timing and logistical constraints, the use of PAM will not be required. For any future actions by the applicant in this area, the use of PAM for mitigation or monitoring purposes will be considered.

Comment 2: One private citizen requested notice of this military training exercise to be posted in the Kauai newspaper to help generate adequate public awareness and facilitate a healthy amount of discussion on this IHA prior to commencing activities.

Response: NMFS made the information available to the public during our 30-day public comment period by publishing the proposed IHA in the Federal Register on July 7, 2016 (81 FR 44277) and by posting all of the documents to our Web site. In addition, the USAF posted their draft EA in The Garden Island and Honolulu Star Advertiser newspapers, as well as other places, describing the action and the potential impacts of the action on the environment. A 30-day public comment period was available for public input.

Description of Marine Mammals in the Area of the Specified Activity

There are 25 marine mammal species with potential or confirmed occurrence in the activity area; however, not all of these species occur in this region during the project timeframe. Table 2 lists and summarizes key information regarding stock status and abundance of these species. Please see NMFS' 2015 Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars for more detailed accounts of these stocks' status and abundance.

Table 2—Marine Mammals That Could Occur in the BSURE AreaSpeciesStockESA/MMPA status;

Of these 25 species, five are listed as endangered under the ESA and as depleted throughout its range under the MMPA. These are: Blue whale, fin whale, sei whale, sperm whale, and the Hawaiian monk seal. Humpback whales were listed as endangered under the ESA in 1973. NMFS evaluated the status of this population, and on September 8, 2016, NMFS divided the globally listed humpback whale into 14 distinct population segment (DPS), removed the current species-level listing, and in its place listed four DPSs as endangered and one DPS as threatened (81 FR 62259). The remaining nine DPSs were not listed because it was determined that they are not threatened or endangered under the ESA. The Hawaiian DPS of humpback whales, which would be present in the action area, were not listed under the ESA in NMFS final rule.

Of the 25 species that may occur in Hawaiian waters, only certain stocks occur in the impact area, while others are island-associated or do not occur at the depths of the impact area (e.g. false killer whale insular stock, island-associated stocks of bottlenose, spinner, and spotted dolphins). Only five species are considered likely to be in the impact area during the one day of project activities. This number has increased from the proposed IHA based on changes to the project dates. Dates have moved back to October (from September), and the use of fall densities are now used. The species now modeled to have take exposures include dwarf sperm whale, pygmy sperm whale, Fraser's dolphin, minke whale, and humpback whale. Other species are seasonal and only occur in these waters later in the winter (blue whale, fin whale, sei whale, killer whale); some are rare in the area or unlikely to be impacted due to small density estimates (Longman's beaked whale, Bryde's whale, false killer whale, pygmy killer whale, short-finned pilot whale, melon-headed whale, bottlenose dolphin, pantropical spotted dolphin, striped dolphin, spinner dolphin, rough-toothed dolphin, Risso's dolphin, Cuvier's beaked whale, Blainville's beaked whale, and Hawaiian monk seal). Because these 19 species are unlikely to occur within the BSURE area based on modeling predictions, 86 FWS has not requested, and NMFS will not issue take authorizations for them. Thus, NMFS does not consider these species further in this notice.

We have reviewed 86 FWS's species descriptions, including life history information, distribution, regional distribution, diving behavior, and acoustics and hearing, for accuracy and completeness. We refer the reader to Sections Three and Four of 86 FWS's application rather than reprinting the information here. Please also refer to NMFS' Web site (www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts. We provided additional information for two of the marine mammals (dwarf and pygmy sperm whales) with potential for occurrence in the area of the specified activity in our Federal Register notice of proposed authorization (81 FR 44277) (July 7, 2016). Since that publication, the dates for the LRS WSEP activities changed to later in the year; therefore, different densities were used to calculate take. Because of this, two additional species were included in take exposures. Species descriptions for these three species are provided below.

Fraser's dolphin

Fraser's dolphin are distributed worldwide in tropical waters (Caretta et al., 2011). Very little is known about this species, which was first documented within Hawaiian waters in 2002. There is a single stock in Hawaii with a current population estimate of 16,992 animals and PBR at 102 animals (Caretta et al., 2016). Current population trends are not available for this species. This species is not listed under the Endangered Species Act (ESA), and is not considered strategic or designated as depleted under the Marine Mammal Protection Act (MMPA) (Caretta et al., 2016). The biggest threat to the species is fishery-related injuries (Caretta et al., 2011).

Minke whale

Minke whales are found worldwide in deep waters. There are three stocks in the Pacific: The Hawaiian stock, the California/Oregon/Washington stock, and the Alaskan stock. Only the Hawaiian stock is affected by the project activities. Minke whales occur seasonally in Hawaiian waters (October-April). Current abundance estimates, PBR, and population trends for this stock are unknown. This stock is not listed under the ESA, nor are they considered strategic, or designated as depleted under the MMPA. One of the suggested habitat concerns for this stock is the increasing levels of anthropogenic noise in the world's oceans (Caretta et al., 2014).

Humpback whale

Humpback whales are found worldwide in all ocean basins. In winter, most humpback whales occur in the subtropical and tropical waters of the Northern and Southern Hemispheres. These wintering grounds are used for mating, giving birth, and nursing new calves. Humpback whales migrate nearly 3,000 mi (4,830 km) from their summer foraging grounds to these wintering grounds in Hawaii away. The average date of the first sighting of humpback whales in Hawaii is approximately the first week in October, with whales seen earlier and earlier in the past five years (E. Lyman, personal communication, August 2016).

Humpback whales were listed as endangered under the Endangered Species Conservation Act (ESCA) in June 1970. In 1973, the ESA replaced the ESCA, and continued to list humpbacks as endangered. Because the recent rule by NMFS did not consider the Hawaii DPS of humpbacks to be threatened or endangered under the ESA, this DPS is not listed under the ESA. The current abundance estimate for this DPS is 11,398 individuals and its population trend estimate is 5.5-6 percent (81 FR 62259).

Potential Effects of the Specified Activity on Marine Mammals and Their Habitat

This section of the notice of the proposed Authorization (81 FR 44277) (July 7, 2016) included a summary and discussion of the ways that components (e.g., munition strikes and detonation effects) of the specified activity, including mitigation, may impact marine mammals and their habitat. The Estimated Take by Incidental Harassment section later in this document will include a quantitative analysis of the number of individuals that we expect 86 FWS to take during this activity. The Negligible Impact Analysis section will include the analysis of how this specific activity would impact marine mammals, and will consider the content of this section, the Estimated Take by Incidental Harassment section and the Mitigation section to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.

In summary, the LRS WSEP training exercises proposed for taking of marine mammals under an Authorization have the potential to take marine mammals by exposing them to overpressure and acoustic components generated by live ordnance detonation at or near the surface of the water. Exposure to energy or pressure resulting from these detonations could result in Level A harassment (physical injury and permanent threshold shift, or PTS) and Level B harassment (temporary threshold shift, or TTS and behavioral disturbances). Based on modeled predictions, LRS WSEP activities are not expected to result in serious injury or mortality.

NMFS provided detailed information on these potential effects in the notice of the proposed Authorization (81 FR 44277) (July 7, 2016). The information presented in that notice has not changed.

Anticipated Effects on Habitat

Detonations of live ordnance would result in temporary changes to the water environment. An explosion on the surface of the water from these weapons could send a shock wave and blast noise through the water, release gaseous by-products, create an oscillating bubble, and cause a plume of water to shoot up from the water surface. However, these effects would be temporary and not expected to last more than a few seconds. Similarly, 86 FWS does not expect any long-term impacts with regard to hazardous constituents to occur. 86 FWS considered the introduction of fuel, debris, ordnance, and chemical materials into the water column within its EA and determined the potential effects of each to be insignificant. NMFS provided a summary of the analyses in the notice for the proposed Authorization (81 FR 44277) (July 7, 2016). The information presented in that notice has not changed.

Mitigation

In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses (where relevant).

The NDAA of 2004 amended the MMPA as it relates to military-readiness activities and the incidental take authorization process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

NMFS and 86 FWS have worked to identify potential practicable and effective mitigation measures, which include a careful balancing of the likely benefit of any particular measure to the marine mammals with the likely effect of that measure on personnel safety, practicality of implementation, and impact on the “military-readiness activity.” We refer the reader to Section 11 of 86 FWS's application for more detailed information on the planned mitigation measures which are also described below.

Visual Aerial Surveys: For the LRS WSEP activities, mitigation procedures consist of visual aerial surveys of the impact area for the presence of protected marine species (including marine mammals). During aerial observation, Navy test range personnel may survey the area from an S-61N helicopter or C-62 aircraft that is based at the PMRF land facility (typically when missions are located relatively close to shore). Alternatively, when missions are located farther offshore, surveys may be conducted from mission aircraft (typically jet aircraft such as F-15E, F-16, or F-22) or a U.S. Coast Guard C-130 aircraft.

Protected species surveys will begin within one hour of weapon release and as close to the impact time as feasible, given human safety requirements. Survey personnel must depart the human hazard zone before weapon release, in accordance with Navy safety standards. Personnel conduct aerial surveys within an area defined by an approximately 2-nm (3,704 m) radius around the impact point, with surveys typically flown in a star pattern. This survey distance is consistent with requirements already in place for similar actions at PMRF. Observers would consist of aircrew operating the C-26, S-61N, and C-130 aircraft from PMRF and the Coast Guard. These aircrew are trained and have had prior experience conducting aerial marine mammal surveys and have provided similar support for other missions at PMRF. Aerial surveys are typically conducted at an altitude of about 200 feet (61 m), but altitude may vary somewhat depending on sea state and atmospheric conditions. The C-26 and other aircraft would generally be operated at a slightly higher altitude than the S-61N helicopter. If adverse weather conditions preclude the ability for aircraft to safely operate, missions would either be delayed until the weather clears or cancelled for the day. For 2016 LRS WSEP missions, one day has been designated as a weather back-up day. The observers will be provided with the GPS location of the impact area. Once the aircraft reaches the impact area, pre-mission surveys typically last for 30 minutes, depending on the survey pattern. The fixed-wing aircraft are faster than the helicopter; and, therefore, protected species may be more difficult to spot. However, to compensate for the difference in speed, the aircraft may fly the survey pattern multiple times.

If a protected species is observed in the impact area, weapon release would be delayed until one of the following conditions is met: (1) The animal is observed exiting the impact area; (2) the animal is thought to have exited the impact area based on its course and speed; or (3) the impact area has been clear of any additional sightings for a period of 30 minutes. All weapons will be tracked and their water entry points will be documented.

Post-mission surveys would begin immediately after the mission is complete and the Range Safety Officer declares the human safety area is reopened. Approximate transit time from the perimeter of the human safety area to the weapon impact area would depend on the size of the human safety area and vary between aircraft but is expected to be less than 30 minutes. Post-mission surveys would be conducted by the same aircraft and aircrew that conducted the pre-mission surveys and would follow the same patterns as pre-mission surveys but would focus on the area down current of the weapon impact area to determine if protected species were affected by the mission (observation of dead or injured animals). If physical injury or mortality occurs to a protected species due to LRS WSEP missions, NMFS would be notified immediately.

Based on the ranges presented in Table 5 and factoring operational limitations (e.g. fuel constraints) associated with the mission, 86 FWS estimates that during pre-mission surveys, the planned monitoring area would be approximately 2 nm (3,704 m) from the target area radius around the impact point, with surveys typically flown in a star pattern, which is consistent with requirements already in place for similar actions at PMRF and encompasses the entire TTS threshold ranges (sound exposure level, or SEL) for mid-frequency cetaceans, half of the PTS SEL range for high-frequency cetaceans, the entire PTS ranges for low-frequency cetaceans, and half of the TTS range for LF cetaceans. Given operational constraints, surveying these larger areas would not be feasible.

We have carefully evaluated 86 FWS's proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;

• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and

• The practicability of the measure for applicant implementation.

Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:

1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).

3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to stimuli that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to training exercises that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only).

5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

Based on our evaluation of 86 FWS's proposed measures, as well as other measures that may be relevant to the specified activity, we have determined that the mitigation measures, including visual aerial surveys and mission delays if protected species are observed in the impact area, provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance (while also considering personnel safety, practicality of implementation, and the impact of effectiveness of the military readiness activity).

Monitoring and Reporting

In order to issue an Authorization for an activity, section 101(a)(5)(D) of the MMPA states that we must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for an authorization must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and our expectations of the level of taking or impacts on populations of marine mammals present in the action area.

86 FWS submitted measures for marine mammal monitoring and reporting in their IHA application. Any monitoring requirement we prescribe should improve our understanding of one or more of the following:

NMFS will include the following measures in the LRS WSEP Authorization. They are:

(1) 86 FWS will track the use of the PMRF for mission activities and protected species observations, through the use of mission reporting forms.

(2) 86 FWS will submit a summary report of marine mammal observations and LRS WSEP activities to the NMFS Pacific Islands Regional Office (PIRO) and the Office of Protected Resources 90 days after expiration of the current Authorization. This report must include the following information: (i) Date and time of each LRS WSEP exercise; (ii) a complete description of the pre-exercise and post-exercise activities related to mitigating and monitoring the effects of LRS WSEP exercises on marine mammal populations; (iii) an accounting of the munitions use; and (iv) results of the LRS WSEP exercise monitoring, including number of marine mammals (by species) that may have been harassed due to presence within the activity zone.

(3) 86 FWS will monitor for marine mammals in the proposed action area. If 86 FWS personnel observe or detect any dead or injured marine mammals prior to testing, or detects any injured or dead marine mammal during live fire exercises, 86 FWS must cease operations and submit a report to NMFS within 24 hours.

(4) 86 FWS must immediately report any unauthorized takes of marine mammals (i.e., serious injury or mortality) to NMFS and to the respective Pacific Islands Region stranding network representative. 86 FWS must cease operations and submit a report to NMFS within 24 hours.

Estimated Numbers of Marine Mammals Taken by Harassment

The NDAA amended the definition of harassment as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment).

NMFS previously described the physiological responses, and behavioral responses that could potentially result from exposure to explosive detonations. In this section, we will relate the potential effects to marine mammals from detonation of explosives to the MMPA regulatory definitions of Level A and Level B harassment. This section will also quantify the effects that might occur from the planned military readiness activities in PMRF BSURE area.

86 FWS thresholds used for onset of temporary threshold shift (TTS; Level B Harassment) and onset of permanent threshold shift (PTS; Level A Harassment) are consistent with the thresholds outlined in the Navy's report titled, “Criteria and Thresholds for U.S. Navy Acoustic and Explosive Effects Analysis Technical Report,” which the Navy coordinated with NMFS. The report is available on the internet at: http://nwtteis.com/Portals/NWTT/DraftEIS2014/SupportingDocs/NWTT_NMSDD_Technical_Report_23_January%202014_reduced.pdf

In August 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing, which established new thresholds for predicting auditory injury, which equates to Level A harassment under the MMPA. In the August 4, 2016, Federal Register Notice announcing the Guidance (81 FR 51694), NMFS explained the approach it would take during a transition period, wherein we balance the need to consider this new best available science with the fact that some applicants have already committed time and resources to the development of acoustic analyses based on our previous thresholds and have constraints that preclude the recalculation of take estimates, as well consideration of where the agency is in the decision-making pipeline. In that Notice, we included a non-exhaustive list of factors that would inform the most appropriate approach for considering the new guidance, including: How far in the MMPA process the applicant has progressed; the scope of the effects; when the authorization is needed; the cost and complexity of the analysis; and the degree to which the Guidance is expected to affect our analysis.

In this case, the Air Force has requested an authorization for a one-day activity that would include one explosive release and two explosive bursts of four munitions timed a few seconds apart and occur in October. Our analysis in the proposed IHA for this action (81 FR 44277) (July 7, 2016) includes the consideration of, and we proposed to authorize, takes of small numbers of marine mammals by both Level A and Level B harassment. The extremely short duration of the activity (essentially three instantaneous events within a day) and the robust monitoring and mitigation measures we proposed minimize the likelihood that Level A harassment will occur. In short, although the new thresholds were not used in the calculation of take, we believe that the existing analysis, mitigation, and authorization adequately address the likely effects and protective measures.

Level B Harassment

Of the potential effects described earlier in this document, the following are the types of effects that fall into the Level B harassment category:

Behavioral Harassment—Behavioral disturbance that rises to the level described in the above definition, when resulting from exposures to non-impulsive or impulsive sound, is Level B harassment. Some of the lower level physiological stress responses discussed earlier would also likely co-occur with the predicted harassments, although these responses are more difficult to detect and fewer data exist relating these responses to specific received levels of sound. When predicting Level B harassment based on estimated behavioral responses, those takes may have a stress-related physiological component.

Temporary Threshold Shift—As discussed in the proposed Federal Register notice (81 FR 44277) (July 7, 2016), TTS can affect how an animal behaves in response to the environment, including conspecifics, predators, and prey. NMFS classifies TTS (when resulting from exposure to explosives and other impulsive sources) as Level B harassment, not Level A harassment (injury).

Level A Harassment

Of the potential effects that were described earlier, the following are the types of effects that fall into the Level A Harassment category:

Permanent Threshold Shift—PTS (resulting from exposure to explosive detonations) is irreversible and NMFS considers this to be an injury.

Gastrointestinal (GI) Tract Injury—GI tract injury includes contusions and lacerations from blast exposures, particularly in air-containing regions of the tract.

Slight Lung Injury—These injuries may include slight blast injuries to the lungs but would be survivable.

Mortality

Mortality may include injuries that lead to mortality including primary (moderate to severe) blast injuries and barotrauma. Thresholds are based on the level of impact that would cause extensive lung injury resulting in mortality to one percent of exposed animals (Finneran and Jenkins, 2012).

Table 4 outlines the explosive thresholds used by NMFS for this Authorization when addressing noise impacts from explosives.

EN03OC16.000

86 FWS completed acoustic modeling to determine the distances to NMFS's explosive thresholds from their explosive ordnance, which was then used with each species' density to determine number of exposure estimates. Below is a summary of those modeling efforts.

The zone of influence is defined as the area or volume of ocean in which marine mammals could be exposed to various pressure or acoustic energy levels caused by exploding ordnance. Refer to Appendix A of 86 FWS's application for a description of the method used to calculate impact areas for explosives. The pressure and energy levels considered to be of concern are defined in terms of metrics, criteria, and thresholds. A metric is a technical standard of measurement that describes the acoustic environment (e.g., frequency, duration, temporal pattern, and amplitude) and pressure at a given location. Criteria are the resulting types of possible impact and include mortality, injury, and harassment. A threshold is the level of pressure or noise above which the impact criteria are reached.

Standard impulsive and acoustic metrics were used for the analysis of underwater energy and pressure waves in this document. Several different metrics are important for understanding risk assessment analysis of impacts to marine mammals: SPL is the ratio of the absolute sound pressure to a reference level, SEL is measure of sound intensity and duration, and positive impulse is the time integral of the pressure over the initial positive phase of an arrival.

The criteria and thresholds used to estimate potential pressure and acoustic impacts to marine mammals resulting from detonations were obtained from Finneran and Jenkins (2012) and include mortality, injurious harassment (Level A), and non-injurious harassment (Level B). In some cases, separate thresholds have been developed for different species groups or functional hearing groups. Functional hearing groups included in the analysis are low-frequency cetaceans, mid-frequency cetaceans, high-frequency cetaceans, and Phocid pinnipeds.

The maximum estimated range, or radius, from the detonation point to which the various thresholds extend for all munitions planned to be released in a 24-hour time period was calculated for each species based on explosive acoustic characteristics, sound propagation, and sound transmission loss in the Study Area, which incorporates water depth, sediment type, wind speed, bathymetry, and temperature/salinity profiles (Table 5). The ranges were used to calculate the total area (circle) of the zones of influence for each criterion/threshold. To eliminate “double-counting” of animals, impact areas from higher impact categories (e.g., mortality) were subtracted from areas associated with lower impact categories (e.g., Level A harassment). The estimated number of marine mammals potentially exposed to the various impact thresholds was then calculated as the product of the adjusted impact area, animal density, and number of events. Since the model accumulates the energy from all detonations within a 24-hour timeframe, it is assumed that the same population of animals is being impacted within that time period. The population would refresh after 24 hours. In this case, only one mission day is planned for 2016, and therefore, only one event is modeled that would impact the same population of animals. Details of the acoustic modeling method are provided in Appendix A of the application.

The resulting total number of marine mammals potentially exposed to the various levels of thresholds is shown in Table 7. An animal is considered “exposed” to a sound if the received sound level at the animal's location is above the background ambient acoustic level within a similar frequency band. The exposure calculations from the model output resulted in decimal values, suggesting in most cases that a fraction of an animal was exposed. To eliminate this, the acoustic model results were rounded to the nearest whole animal to obtain the exposure estimates from 2016 missions. Furthermore, to eliminate “double-counting” of animals, exposure results from higher impact categories (e.g., mortality) were subtracted from lower impact categories (e.g., Level A harassment). For impact categories with multiple criteria and/or thresholds (e.g., three criteria and four thresholds associated with Level A harassment), numbers in the table are based on the threshold resulting in the greatest number of exposures. These exposure estimates do not take into account the required mitigation and monitoring measures, which may decrease the potential for impacts.

Density estimates for marine mammals were derived from the Navy's draft 2016 Technical Report of Marine Species Density Database (NMSDD). NMFS refers the reader to Section 3 of 86 FWS's application for detailed information on all equations used to calculate densities; also presented in Table 6.

Table 7 indicates the modeled potential for lethality, injury, and non-injurious harassment (including behavioral harassment) to marine mammals in the absence of mitigation measures. All other species had zero takes modeled for each category. 86 FWS and NMFS estimate that one marine mammal species could be exposed to injurious Level A harassment noise levels (187 dB SEL) and five species could be exposed to Level B harassment (TTS and Behavioral) noise levels in the absence of mitigation measures.

Based on the mortality exposure estimates calculated by the acoustic model, zero marine mammals are expected to be affected by pressure levels associated with mortality or serious injury. Zero marine mammals are expected to be exposed to pressure levels associated with slight lung injury or gastrointestinal tract injury.

NMFS considers PTS to fall under the injury category (Level A Harassment). There are different degrees of PTS ranging from slight/mild to moderate and from severe to profound. Profound PTS or the complete loss of the ability to hear in one or both ears is commonly referred to as deafness. In the case of authorizing Level A harassment, NMFS has estimated that one dwarf sperm whale could experience permanent threshold shifts of hearing sensitivity (PTS).

Negligible Impact Analysis and Determinations

NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, we consider other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and effects on habitat.

To avoid repetition, the discussion below applies to all the species listed in Table 7 for which we propose to authorize incidental take for 86 FWS's activities.

In making a negligible impact determination, we consider:

• The number of anticipated injuries, serious injuries, or mortalities;

• The number, nature, and intensity, and duration of Level B harassment;

• The context in which the takes occur (e.g., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to baseline data);

• The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population);

• Impacts on habitat affecting rates of recruitment/survival; and

• The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take.

For reasons stated previously in this document, including modeling predictions that estimated no serious injury or death for any species, the use of mitigation measures, and the short duration of the activities, 86 FWS's specified activities are not likely to cause long-term behavioral disturbance, serious injury, or death. The takes from Level B harassment would be due to behavioral disturbance and TTS. The takes from Level A harassment would be due to PTS. We anticipate that any PTS incurred would be in the form of only a small degree of PTS and not total deafness.

While animals may be impacted in the immediate vicinity of the activity, because of the short duration of the actual individual explosions themselves (versus continual sound source operation) combined with the short duration of the LRS WSEP operations, NMFS has determined that there will not be a substantial impact on marine mammals or on the normal functioning of the nearshore or offshore waters off Kauai and its ecosystems. We do not expect that the planned activity would impact rates of recruitment or survival of marine mammals since we do not expect mortality (which would remove individuals from the population) or serious injury to occur. In addition, the planned activity would not occur in areas (and/or times) of significance for the marine mammal populations potentially affected by the exercises (e.g., feeding or resting areas, reproductive areas), and the activities would only occur in a small part of their overall range, so the impact of any potential temporary displacement would be negligible and animals would be expected to return to the area after the cessations of activities. Although the planned activity could result in Level A (PTS only) and Level B (behavioral disturbance and TTS) harassment of marine mammals, the level of harassment is not anticipated to impact rates of recruitment or survival of marine mammals because the number of exposed animals is expected to be low due to the short-term (i.e., four hours a day or less on one day) and site-specific nature of the activity. We do not anticipate that the effects would be detrimental to rates of recruitment and survival because we do not expect serious or extended behavioral responses that would result in energetic effects at the level to impact fitness.

Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, and the short duration of the activities, NMFS finds that 86 FWS's LRS WSEP operations will result in the incidental take of marine mammals, by Level A and Level B harassment, and that the taking from the LRS WSEP exercises will have a negligible impact on the affected species or stocks.

Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses

There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

Endangered Species Act (ESA)

No marine mammal species listed under the ESA are expected to be affected by these activities. Therefore, NMFS has determined that a section 7 consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

NMFS prepared an EA in accordance with the NEPA. NMFS determined that these activities will not have a significant effect on the human environment and signed a Finding of No Significant Impact (FONSI) in September 2016.

Authorization

As a result of these determinations, NMFS has issued an IHA to 86 FWS for conducting LRS WSEP activities, for a period of one year from the date of issuance, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

12. Receive an update on the Council's work plan and current amendments.

13. Discuss revisions to the SSC Public Comment Policy.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

Written comment on SSC agenda topics is to be distributed to the Committee through the Council office. Written comment to be considered by the SSC shall be provided to the Council office no later than one week prior to an SSC meeting. The deadline for submission of written comment is 12 p.m. Tuesday, October 11, 2016. Two opportunities for comment on agenda items will be provided during the SSC meeting and noted on the agenda. The first will be at the beginning of the meeting, and the second near the conclusion, when the SSC reviews its recommendations.

Special Accommodations

This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see ADDRESSES) at least 10 business days prior to the meeting.

Note: The times and sequence specified in this agenda are subject to change.

The purpose of the methodology review meeting is to discuss and review proposed changes to analytical methods used in salmon management. Recommendations from the methodology review meeting will be presented at the November 13-21, 2016 Council meeting in Garden Grove, CA where the Council is scheduled to take final action on the proposals. One topic, a forecast model for Sacramento River winter Chinook, was adopted by the Council at their September 12-20, 2016 meeting in Boise, ID for consideration at the methodology review meeting.

Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during the meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

Special Accommodations

The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820-2425 at least 10 business days prior to the meeting date.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; issuance of permit.

SUMMARY:

Notice is hereby given that a permit has been issued to the British Broadcasting Company (BBC) Natural History Unit, 23 Whiteladies Road, Bristol BS8 2LR, United Kingdom, commercial and educational photography on California sea lions (Zalophus californianus).

ADDRESSES:

The permit and related documents are available for review upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.

FOR FURTHER INFORMATION CONTACT:

Rosa González or Jennifer Skidmore, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

On July 25, 2016, notice was published in the Federal Register (81 FR 48394) that a request for a permit to commercial and educational photography on California sea lions had been submitted by the above-named applicant. The requested permit has been issued under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) and the regulations governing the taking and importing of marine mammals (50 CFR part 216).

Permit No. 20481 authorizes filming California sea lions along the California coast and offshore from Point Año Nuevo south to the Channel Islands. Up to 1000 California sea lions may be approached for filming from land, vessel, and underwater (snorkelers or scuba divers). In addition, up to1000 long-beaked common dolphins (Delphinus capensis) and 1000 short-beaked common dolphins (D. delphis) may be incidentally harassed and filmed during operations. The permit expires on August 31, 2017.

In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), a final determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; public meeting.

SUMMARY:

The New England Fishery Management Council (Council) is scheduling a public meeting of its Scientific & Statistical Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

DATES:

This meeting will be held on Tuesday, October 18, 2016, beginning at 9 a.m.

The committee will review information provided by the Council's Scallop Plan Development Team (PDT) and recommend the overfishing levels (OFLs) and acceptable biological catches (ABCs) for Atlantic sea scallops for fishing years 2016 and 2017. They will discuss other issues related to improving control rules and ABC recommendations for groundfish and other stocks, including ecosystem information, how to deal with information from multiple stock assessment models and other information. Other business will be discussed as needed.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

Requests for additional information or copies of the information collection instrument and instructions should be directed to Dale Youngkin, (301) 427-8401 or ITP.Youngkin@noaa.gov.

SUPPLEMENTARY INFORMATION:

I. Abstract

This request is for an extension of a currently approved information collection.

The Marine Mammal Protection Act of 1972 (MMPA; 16 U.S.C. 1361 et seq.) prohibits the “take” of marine mammals unless otherwise authorized or exempted by law. Among the provisions that allow for lawful take of marine mammals, sections 101(a)(5)(A) and (D) of the MMPA direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing), within a specified geographical region if, after notice and opportunity for public comment, we find that the taking will have a negligible impact on the affected species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The National Marine Fisheries Service (NMFS) also must set forth the permissible methods of taking; other means of effecting the least practicable adverse impact on the species or stock and its habitat (mitigation); and requirements pertaining to the monitoring and reporting of such taking.

Issuance of an incidental take authorization (Authorization) under section 101(a)(5)(A) or 101(a)(5)(D) of the MMPA requires three sets of information collection: (1) A complete application for an Authorization, as set forth in our implementing regulations at 50 CFR 216.104, which provides the information necessary for us to make the necessary statutory determinations, including estimates of take and an assessment of impacts on the affected species and stocks; (2) information relating to required monitoring; and (3) information related to required reporting. These collections of information enable us to: (1) Evaluate the proposed activity's impact on marine mammals; (2) arrive at the appropriate determinations required by the MMPA and other applicable laws prior to issuing the authorization; and (3) monitor impacts of activities for which we have issued Authorizations to determine if our predictions regarding impacts on marine mammals remain valid.

On August 4, 2016, NMFS published a Federal Register Notice (81 FR 51694) notifying the public of its new Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance). This guidance established new thresholds for predicting auditory injury, which equates to Level A harassment (a type of take) under the MMPA. In that Federal Register Notice we stated that we would consider the effect of the Guidance, specifically whether a revision in the burden hour estimates is appropriate, and invite public comment on its assessment.

Although NMFS has updated the acoustic thresholds and these changes may necessitate new methodologies for calculating impacts, NMFS does not anticipate that the new guidance will substantially add to the overall burden to applicants for incidental take authorizations. This is due to the fact that, recognizing that action proponents have varying abilities to model and estimate exposure, and that the new guidance may be more complex than some action proponents are able to incorporate, NMFS provided an alternative methodology with an associated spreadsheet for use as an aid. Action proponents already using more complex modeling capabilities would simply modify their modeling efforts using the new criteria, and action proponents without the ability to do more complex modeling may opt to use the alternative methodology spreadsheet. Therefore, the estimated time per response is not affected by the guidance.

II. Method of Collection

Respondents have a choice of submitting either electronic or paper forms. Methods of submittal include email, mail, overnight delivery service, and/or facsimile transmissions.

III. Data

OMB Control Number: 0648-0151.

Form Number: None.

Type of Review: Regular submission (extension of a currently approved information collection).

Estimated Time per Response: 255 hours for an Incidental Harassment Authorization (IHA) application; 11 hours for an IHA interim report (if applicable); 115 hours for an IHA draft annual report; 14 hours for an IHA final annual report (if applicable); 1,100 hours for the initial preparation of an application for new regulations; 70 hours for an annual Letter of Authorization (LOA) application; 220 hours for an LOA draft annual report; 65 hours for a LOA final annual report (if applicable); 625 hours for a LOA draft comprehensive report; and 300 hours for an LOA final comprehensive report. Response times will vary for the public based upon the complexity of the requested action.

Estimated Total Annual Burden Hours: 14,109.

Estimated Total Annual Cost to Public: $360 in recordkeeping/reporting costs and $0 in capital costs.

IV. Request for Comments

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; issuance of an incidental harassment authorization.

SUMMARY:

In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to the U.S. Navy (Navy) to incidentally harass marine mammals during construction activities associated with the Pier Construction and Support Facilities Project at Port Angeles, WA.

DATES:

This authorization is effective from November 1, 2016 to October 31, 2017.

FOR FURTHER INFORMATION CONTACT:

Laura McCue, Office of Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:Availability

An electronic copy of the Navy's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental.htm. A memorandum describing our adoption of the Navy's Environmental Assessment (2016) and our associated Finding of No Significant Impact, prepared pursuant to the National Environmental Policy Act, are also available at the same site. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified area, the incidental, but not intentional, taking of small numbers of marine mammals, providing that certain findings are made and the necessary prescriptions are established.

The incidental taking of small numbers of marine mammals may be allowed only if NMFS (through authority delegated by the Secretary) finds that the total taking by the specified activity during the specified time period will (i) have a negligible impact on the species or stock(s) and (ii) not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). Further, the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking must be set forth, either in specific regulations or in an authorization.

The allowance of such incidental taking under section 101(a)(5)(A), by harassment, serious injury, death, or a combination thereof, requires that regulations be established. Subsequently, a Letter of Authorization may be issued pursuant to the prescriptions established in such regulations, providing that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations. Under section 101(a)(5)(D), NMFS may authorize such incidental taking by harassment only, for periods of not more than one year, pursuant to requirements and conditions contained within an IHA. The establishment of prescriptions through either specific regulations or an authorization requires notice and opportunity for public comment.

NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.” The former is termed Level A harassment and the latter is termed Level B harassment.

Summary of Request

On September 11, 2015, we received a request from the Navy for authorization to take marine mammals incidental to pile driving associated with the construction of a pier and support facilities at the U.S. Coast Guard (USCG) Air Station/Sector Field Office Port Angeles (AIRSTA/SFO Port Angeles), located in Port Angeles Harbor on the Ediz Hook peninsula, Port Angeles. The Navy submitted a revised version of the request on February 19, 2016, which we deemed adequate and complete on February 22, 2016.

The Navy will initiate this multi-year project, lasting up to 18 months, involving impact and vibratory pile driving conducted within the approved in-water work windows. In water work is expected to begin on November 1, 2016 in order to minimize impacts to an Atlantic Salmon net pen farm located in close proximity to the project area. In water work will conclude on February 15, 2017, and begin again from July 16 to October 31, 2017. If in-water work will extend beyond the effective dates of the IHA, a second IHA application will be submitted by the Navy.

The use of both vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in behavioral harassment of marine mammals. Take, by Level B Harassment, may impact individuals of five species of marine mammals (harbor porpoise (Phocoena phocoena), harbor seal (Phoca vitulina), Northern elephant seal (Mirounga angustirostris), Steller sea lion (Eumatopias jubatus), and California sea lion (Zalophus californianus)). As the next paragraph explains, we have also determined based on the best available information that there also may be a small number of take by Level A Harassment of harbor seals.

On August 4, 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance). This new guidance established new thresholds for predicting auditory injury, which equates to Level A harassment under the MMPA. In the August 4, 2016, Federal Register Notice (81 FR 51694), NMFS explained the approach it would take during a transition period, wherein we balance the need to consider this new best available science with the fact that some applicants have already committed time and resources to the development of analyses based on our previous thresholds and have constraints that preclude the recalculation of take estimates, as well as consideration of where the action is in the agency's decision-making pipeline. In that Notice, we included a non-exhaustive list of factors that would inform the most appropriate approach for considering the new Guidance, including: the scope of effects; how far in the process the applicant has progressed; when the authorization is needed; the cost and complexity of the analysis; and the degree to which the guidance is expected to affect our analysis.

In this case, the Navy initially submitted a request for authorization on September 11, 2015, followed by an adequate and complete request determination on February 22, 2016. The Navy requires issuance of the authorization in order to ensure that this critical national security infrastructure project is able to meet its necessary start date. The Guidance indicates that there is a greater likelihood of auditory injury for Phocid pinnipeds (i.e., harbor seals) and for high-frequency cetaceans (i.e., harbor porpoise) than was considered in our notice of proposed authorization. In order to address this increased likelihood, we increased the shutdown zones required for harbor seals to 100 m and for harbor porpoise to 150 m. With these changes, and in addition to other required mitigation measures, the Navy has a robust monitoring and mitigation program that we believe is effective in minimizing impacts to the affected species or stocks.

In addition, to account for the potential that not all harbor seals may be observed, we authorize the taking by Level A harassment of one harbor seal per day of projected construction activity. In this analysis, we considered the potential for small numbers of harbor seals to incur auditory injury and found that it would not impact our preliminary determinations. In summary, we have considered the new Guidance and believe that the likelihood of injury is adequately addressed in the analysis contained herein and appropriate protective measures are in place in the IHA.

Description of the Specified ActivityOverview

The Navy has increased security for in-transit Fleet Ballistic Missile Submarines (SSBNs) in inland marine waters of northern Washington by establishing a Transit Protection System (TPS) that relies on the use of multiple escort vessels. The purpose of the Pier and Support Facilities for TPS project is to provide a staging location for TPS vessels and crews that escort incoming and outgoing SSBNs between dive/surface points in the Strait of Juan de Fuca and Naval Base (NAVBASE) Kitsap Bangor.

Specific activities that can be expected to result in the incidental taking of marine mammals are limited to the driving of steel piles used for installation of the trestle/fixed pier/floating docks, and the removal of temporary indicator piles.

Vibratory pile driving is the preferred method for production piles and would be the initial starting point for each installation; however, impact pile driving methods may be necessary based on substrate conditions. Once a pile hits “refusal,” which is where hard solid or dense substrate (e.g., gravel, boulders) prevents further pile movement by vibratory methods, impact pile driving is used to drive the pile to depth.

All piles will be driven with a vibratory hammer for their initial embedment depths, while select piles may be finished with an impact hammer for proofing, as necessary. There will be no concurrent pile driving or multiple hammers operating simultaneously. Proofing involves striking a driven pile with an impact hammer to verify that it provides the required load-bearing capacity, as indicated by the number of hammer blows per foot of pile advancement. Sound attenuation measures (i.e., bubble curtain) would be used during all impact hammer operations.

Dates and Duration

Under the action, in-water construction is anticipated to begin in 2016 and require two in-water work window seasons. The allowable season for in-water work, including pile driving, at AIRSTA/SFO Port Angeles is November 1, 2016 through February 15, 2017, and July 16, 2017 through October 31, 2017, a window established by the Washington Department of Fish and Wildlife in coordination with NMFS and the U.S. Fish and Wildlife Service (USFWS) to protect juvenile salmon (Oncorhynchus spp.) and bull trout (Salvelinus confluentus). Overall, a maximum of 75 days of pile driving are anticipated within these in-water work windows. All in-water construction activities will occur during daylight hours (sunrise to sunset) except from July 16 to September 23 when impact pile driving/removal will only occur starting 2 hours after sunrise and ending 2 hours before sunset, to protect foraging marbled murrelets (an Endangered Species Act (ESA)-listed bird under the jurisdiction of USFWS) during nesting season (April1- September 23). Other construction (not in-water) may occur between 7 a.m. and 10 p.m., year-round.

Specific Geographic Region

AIRSTA/SFO Port Angeles is located in the Strait of Juan de Fuca, approximately 62 miles (100 km) east of Cape Flattery, and 63 miles (102 km) northwest of Seattle, Washington on the Olympic Peninsula (see Figure 1-1 in the Navy's application). The Strait of Juan de Fuca is a wide waterway stretching from the Pacific Ocean to the Salish Sea. The strait is 95 miles (153 km) long, 15.5 miles (25 km) wide, and has depths ranging from 180 m to 250 m on the pacific coast and 55 m at the sill. Please see Section 2 of the Navy's application for detailed information about the specific geographic region, including physical and oceanographic characteristics.

Detailed Description of Activities

The purpose of the Pier and Support Facilities for TPS project (the project) is to provide a staging location for TPS vessels and crews that escort incoming and outgoing SSBNs between dive/surface points in the Strait of Juan de Fuca and Naval Base (NAVBASE) Kitsap Bangor. The Navy has increased security for in-transit Fleet Ballistic Missile Submarines (SSBNs) in inland marine waters of northern Washington by establishing a Transit Protection System (TPS) that relies on the use of multiple escort vessels. Construction of the pier and support facilities is grouped into three broad categories: (1) Site Work Activities (2) Construction of Upland Facilities (Alert Forces Facility (AFF) and Ready Service Armory (RSA)), and (3) Construction of Trestle/Fixed Pier/Floating Docks.

The trestle, fixed pier, and floating docks will result in a permanent increase in overwater coverage of 25,465 square feet (ft2) (2,366 square meters (m2)). An estimated 745 ft2 (69 m2) of benthic seafloor will be displaced from the installation of the 144 permanent steel piles. The fixed pier will lie approximately 354 ft (108 m) offshore at water depths between −40 ft (−12 m) and −63 ft (19 m) mean lower low water (MLLW). It will be constructed of precast concrete and be approximately 160 feet long and 42 feet wide (49 m by 13 m). The fixed pier will have two mooring dolphins that connect to the fixed pier via a catwalk, and will be supported by 87 steel piles and result in 10,025 ft2 (931 m2) of permanent overwater coverage. The floating docks including brows will be supported by 21 steel piles and result in 5,380 ft2 (500 m2) of permanent overwater coverage. The trestle will provide vehicle and pedestrian access to the pier and convey utilities to the pier. It will be installed between +7 ft (2 m) MLLW and −45 ft (−14 m) MLLW. The trestle will be approximately 355 feet long (108 m) long and 24 feet (7 m) wide and constructed of precast concrete. The trestle will be designed to support a 50 pound per square foot (psf) (244 kilograms (kg) per square m) live load or a utility trailer with a total load of 3,000 pounds (1,360 kg), and will be supported by 36 steel piles and result in 10,060 ft2 (935 m2) of permanent overwater coverage.

For the entire project, pile installation will include the installation and removal of 80 temporary indicator piles, installation of 60 permanent sheet piles, and installation of 144 permanent steel piles (Table 1). The indicator piles are required to determine if required bearing capacities will be achieved with the production piles, and to assess whether the correct vibratory and impact hammers are being used. The process will be to vibrate the piles to within 5 ft (1.5 m) of the target embedment depth required for the project, let the piles rest in place for a day, and then impact drive the piles the final 5 ft (1.5 m). If the indicator piles cannot be successfully vibrated in, then a larger hammer will be used for the production piles. The impact driving will also provide an indication of bearing capacity via proofing. Each indicator pile would then be vibratory extracted (removed) using a vibratory hammer.

A maximum of 75 days of pile driving may occur. Table 1 summarizes the number and nature of piles required for the entire project.

Pile installation will utilize vibratory pile drivers to the greatest extent possible, and the Navy anticipates that most piles will be able to be vibratory driven to within several feet of the required depth. Pile drivability is, to a large degree, a function of soil conditions and the type of pile hammer. Most piles should be able to be driven with a vibratory hammer to proper embedment depth. However, difficulties during pile driving may be encountered as a result of obstructions, such as rocks or boulders, which may exist throughout the project area. If difficult driving conditions occur, increased usage of an impact hammer will occur.

Pile production rates are dependent upon required embedment depths, the potential for encountering difficult driving conditions, and the ability to drive multiple piles without a need to relocate the driving rig. If difficult subsurface driving conditions (e.g., cobble/boulder zones) are encountered that cause refusal with the vibratory equipment, it may be necessary to use an impact hammer to drive some piles for the remaining portion of their required depth. The worst-case scenario is that a pile would be driven for its entire length using an impact hammer. Given the uncertainty regarding the types and quantities of boulders or cobbles that may be encountered, and the depth at which they may be encountered, the number of strikes necessary to drive a pile its entire length would vary. All piles driven or struck with an impact hammer would be surrounded by a bubble curtain over the full water column to minimize in-water sound. Pile production rate (number of piles driven per day) is affected by many factors: Size, type (vertical versus angled), and location of piles; weather; number of driver rigs operating; equipment reliability; geotechnical (subsurface) conditions; and work stoppages for security or environmental reasons (such as presence of marine mammals).

Comments and Responses

We published a notice of receipt of the Navy's application and proposed IHA in the Federal Register on April 4, 2016 (81 FR 19326). We received one comment, a letter from the Marine Mammal Commission concurring with NMFS's preliminary findings.

Comment: The Commission recommends the issuance of the IHA, subject to the inclusion of the proposed mitigation, monitoring, and reporting measures.

Response: We appreciate the Commission's concurrence with our findings and appreciate their input and support. We look forward to working with them on similar issues in the future.

Description of Marine Mammals in the Area of the Specified Activity

There are eleven marine mammal species with recorded occurrence in the Strait of Juan de Fuca (Table 2), including seven cetaceans and four pinnipeds. Of these eleven species, only five are expected to have a reasonable potential to be in the vicinity of the project site. These species are harbor porpoise (Phocoena phocoena), harbor seal (Phoca vitulina), Northern elephant seal (Mirounga angustirostris), Steller sea lion (Eumatopias jubatus), and California sea lion (Zalophus californianus). Harbor seals occur year round throughout the nearshore inland waters of Washington. Harbor seals are expected to occur year round in Port Angeles Harbor, with a nearby haul-out site on a log boom located approximately 1.7 miles (2.7 km) west of the project site and another haul-out site 1.3 miles (2.1 km) south of the project. Steller sea lions and California sea lions may occur in the area, but there are no site-specific surveys on these species. Harbor porpoises and Northern elephant seal are rare through the project area. The Dall's porpoise (Phocoenoides dalli dalli), humpback whale (Megaptera novaeangliae), minke whale (Balaenoptera acutorostrata), gray whale (Eschrichtius robustus), Pacific white-sided dolphin (Lagenorhynchus obliquidens), and killer whales (Orcinus orca) are extremely rare in Port Angeles Harbor, and we do not believe there is a reasonable likelihood of their occurrence in the project area during the period of validity for this IHA.

We have reviewed the Navy's detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Sections 3 and 4 of the Navy's application instead of reprinting the information here. Please also refer to NMFS' Web site (www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts and to the Navy's Marine Resource Assessment for the Pacific Northwest, which documents and describes the marine resources that occur in Navy operating areas of the Pacific Northwest, including Strait of Juan de Fuca (DoN, 2006). The document is publicly available at www.navfac.navy.mil/products_and_services/ev/products_and_services/marine_resources/marine_resource_assessments.html (accessed February 1, 2016). We provided additional information for marine mammals with potential for occurrence in the area of the specified activity in our Federal Register notice of proposed authorization (April 4, 2016; 81 FR 19326).

PBR 3Relative occurrence in Strait of Juan de Fuca; season of occurrenceOrder Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)Family Phocoenidae (porpoises)Harbor porpoiseWashington inland waters 5-; N10,682 (0.38; 7,841; 2003)63Possible regular presence in the Strait of Juan de Fuca, but unlikely near PAH; year-round.Dall's porpoiseCA/OR/WA-; N42,000 (0.33; 32,106; 2008)257Rare.Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)Family Delphinidae (dolphins)Pacific white-sided dolphinCA/OR/WA-; N26,930 (0.28; 21,406; 2008)171Rare.Killer whaleWest coast transient-; N243 (n/a; 243; 2009)2.4Unlikely.Southern residentE; S78 (n/a; 78; 2014)0.14Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)Family BalaenopteridaeHumpback whaleCA/OR/WAE; S1,918 (0.03; 1,855; 2011)11Unlikely.Minke whaleCA/OR/WA-; N478 (1.36; 202; 2008)2Unlikely.Order Cetartiodactyla—Cetacea—Superfamily Odontoceti (toothed whales, dolphins, and porpoises)Family EschrichtiidaeGray whaleEastern N. Pacific-; N20,990 (0.05; 20,125; 2011)624Unlikely.Order Carnivora—Superfamily PinnipediaFamily Otariidae (eared seals and sea lions)California sea lionU.S.-; N296,750 (n/a; 153,337; 2011)9,200Seasonal/common; Fall to late spring (Aug to Jun).Steller sea lionEastern U.S.-; S60,131- 74,448 (n/a; 36,551; 2013) 61,645 7Seasonal/occasional; Fall to late spring (Sep to May).Family Phocidae (earless seals)Harbor seal 8Washington inland waters 5-; N11,036 (0.15; n/a; 1999)n/aCommon; Year-round resident.Northern elephant sealCalifornia breeding stock-; N179,000 (n/a; 81,368; 2010)4,882Seasonal/rare: Spring to late fall (Apr to Nov).1 ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.2 CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge of the specie's (or similar species') life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the minimum abundance may represent actual counts of all animals ashore.3 Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).4 These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All values presented here are from the draft 2015 SARs (www.nmfs.noaa.gov/pr/sars/draft.htm) except harbor seals. See comment 8.5 Abundance estimates for these stocks are greater than eight years old and are therefore not considered current. PBR is considered undetermined for these stocks, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates and PBR values, as these represent the best available information for use in this document.6 Best abundance is calculated as the product of pup counts and a factor based on the birth rate, sex and age structure, and growth rate of the population. A range is presented because the extrapolation factor varies depending on the vital rate parameter resulting in the growth rate (i.e., high fecundity or low juvenile mortality).7 PBR is calculated for the U.S. portion of the stock only (excluding animals in British Columbia) and assumes that the stock is not within its OSP. If we assume that the stock is within its OSP, PBR for the U.S. portion increases to 2,069.8 Values for harbor seal presented here are from the 2013 SAR.Potential Effects of the Specified Activity on Marine Mammals and Their Habitat

Our Federal Register notice of proposed authorization (April 4, 2016; 81 FR 19326) provides a general background on sound relevant to the specified activity as well as a detailed description of marine mammal hearing and of the potential effects of these construction activities on marine mammals and their habitat.

Mitigation

In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.

Measurements from similar pile driving events were coupled with practical spreading loss to estimate zones of influence (ZOI; see Estimated Take by Incidental Harassment); these values were used to develop mitigation measures for pile driving activities at Port Angeles harbor. The ZOIs effectively represent the mitigation zone that will be established around each pile to prevent Level A harassment to marine mammals, while providing estimates of the areas within which Level B harassment might occur. In addition to the specific measures described later in this section, the Navy will conduct briefings between construction supervisors and crews, marine mammal monitoring team, and Navy staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

Mitigation Monitoring and Shutdown for Pile Driving

The following measures will apply to the Navy's mitigation through shutdown and disturbance zones:

Shutdown Zone—For all pile driving activities, the Navy will establish a shutdown zone intended to contain the area in which injury may occur. The purpose of a shutdown zone is to define an area within which shutdown of activity will occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing injury of marine mammals. During impact pile driving, the Navy will implement a minimum shutdown zone of 10 m radius for all marine mammals around all pile driving activity. Additionally, the Navy will implement a 100 m shutdown for harbor seals and a 150 m shutdown for harbor porpoises. These additional shutdown zones were added to prevent injury based off of NMFS's new acoustic guidance. During vibratory driving, the shutdown zone will be 10 m distance from the source for all animals. These precautionary measures are intended to further reduce any possibility of acoustic injury, as well as to account for any undue reduction in the modeled zones stemming from the assumption of 8 dB attenuation from use of a bubble curtain (see discussion later in this section).

Disturbance Zone—Disturbance zones are the areas in which SPLs equal or exceed 160 and 120 dB rms (for pulsed and non-pulsed continuous sound, respectively). Disturbance zones provide utility for monitoring conducted for mitigation purposes (i.e., shutdown zone monitoring) by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring of disturbance zones enables observers to be aware of and communicate the presence of marine mammals in the project area but outside the shutdown zone and thus prepare for potential shutdowns of activity. However, the primary purpose of disturbance zone monitoring is for documenting incidents of Level B harassment; disturbance zone monitoring is discussed in greater detail later (see Monitoring and Reporting). Nominal radial distances for disturbance zones are shown in Table 3. Given the size of the disturbance zone for vibratory pile driving, it is impossible to guarantee that all animals will be observed or to make comprehensive observations of fine-scale behavioral reactions to sound, and only a portion of the zone will be monitored.

In order to document observed incidents of harassment, monitors record all marine mammal observations, regardless of location. The observer's location, as well as the location of the pile being driven, is known from a GPS. The location of the animal is estimated as a distance from the observer, which is then compared to the location from the pile. The received level may be estimated on the basis of past or subsequent acoustic monitoring. It may then be determined whether the animal was exposed to sound levels constituting incidental harassment in post-processing of observational data, and a precise accounting of observed incidents of harassment created. Therefore, although the predicted distances to behavioral harassment thresholds are useful for estimating harassment for purposes of authorizing levels of incidental take, actual take may be determined in part through the use of empirical data. That information may then be used to extrapolate observed takes to reach an approximate understanding of actual total takes.

Monitoring Protocols—Monitoring will be conducted before, during, and after pile driving activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven. Observations made outside the shutdown zone will not result in shutdown; that pile segment would be completed without cessation, unless the animal approaches or enters the shutdown zone, at which point all pile driving activities will be halted. Monitoring will take place from fifteen minutes prior to initiation through thirty minutes post-completion of pile driving activities. Pile driving activities include the time to remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes. Please see the Marine Mammal Monitoring Plan (available at www.nmfs.noaa.gov/pr/permits/incidental.htm), developed by the Navy with our approval, for full details of the monitoring protocols.

The following additional measures apply to visual monitoring:

(1) Monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Qualified observers are trained biologists, with the following minimum qualifications:

• Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;

• Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);

• Experience or training in the field identification of marine mammals, including the identification of behaviors;

• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;

• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and

• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.

(2) Prior to the start of pile driving activity, the shutdown zone will be monitored for fifteen minutes to ensure that it is clear of marine mammals. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals; animals will be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior will be monitored and documented. The shutdown zone may only be declared clear, and pile driving started, when the entire shutdown zone is visible (i.e., when not obscured by dark, rain, fog, etc.). In addition, if such conditions should arise during impact pile driving that is already underway, the activity will be halted.

(3) If a marine mammal approaches or enters the shutdown zone during the course of pile driving operations, activity will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal. Monitoring will be conducted throughout the time required to drive a pile.

Sound Attenuation Devices

Sound levels can be greatly reduced during impact pile driving using sound attenuation devices. There are several types of sound attenuation devices including bubble curtains, cofferdams, and isolation casings (also called temporary noise attenuation piles (TNAP)), and cushion blocks. The Navy proposes to use bubble curtains, which create a column of air bubbles rising around a pile from the substrate to the water surface. The air bubbles absorb and scatter sound waves emanating from the pile, thereby reducing the sound energy. Bubble curtains may be confined or unconfined. The use of a confined or unconfined bubble curtain will be determined by the Navy's contractor based on the activity location's conditions; however, an unconfined bubble curtain is the likely the design that will be used. Our Federal Register notice of proposed authorization (April 4, 2016; 81 FR 19326) provides a general background on bubble curtains.

To avoid loss of attenuation from design and implementation errors, the Navy has required specific bubble curtain design specifications, including testing requirements for air pressure and flow prior to initial impact hammer use, and a requirement for placement on the substrate. Bubble curtains shall be used during all impact pile driving. The device will distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column, and the lowest bubble ring shall be in contact with the mudline for the full circumference of the ring. We considered eight dB as potentially the best estimate of average SPL (rms) reduction, assuming appropriate deployment and no problems with the equipment. Therefore, an eight dB reduction was used in the Navy's analysis of pile driving noise in the environmental analyses.

Timing Restrictions

In Port Angeles Harbor, designated timing restrictions exist for pile driving activities to avoid in-water work when salmonids and other spawning forage fish are likely to be present. In-water work will be conducted between November 1, 2016-February 15, 2017, and July 16-October 31, 2017. All in-water construction activities will occur during daylight hours (sunrise to sunset) except from July 16 to September 23 when impact pile driving/removal will only occur starting 2 hours after sunrise and ending 2 hours before sunset, to protect foraging marbled murrelets during nesting season (April 1-September 23). Other construction (not in-water) may occur between 7 a.m. and 10 p.m., year-round.

Soft Start

The use of a soft-start procedure is believed to provide additional protection to marine mammals by warning or providing a chance to leave the area prior to the hammer operating at full capacity.

For impact driving, soft start will be required, and contractors will provide an initial set of strikes from the impact hammer at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy strike sets. The reduced energy of an individual hammer cannot be quantified because of variation in individual drivers. The actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in “bouncing” of the hammer as it strikes the pile, resulting in multiple “strikes.” Soft start for impact driving will be required at the beginning of each day's pile driving work and at any time following a cessation of impact pile driving of thirty minutes or longer.

We have carefully evaluated the Navy's proposed mitigation measures and considered their effectiveness in past implementation to determine whether they are likely to effect the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.

Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

(1) Avoidance or minimization of serious injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

(2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).

(3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).

(4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only).

(5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of habitat during a biologically important time.

(6) For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

Based on our evaluation of the Navy's proposed measures, we have determined that the mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

Monitoring and Reporting

In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area.

Any monitoring requirement we prescribe should accomplish one or more of the following general goals:

1. An increase in the probability of detecting marine mammals, both within defined zones of effect (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;

2. An increase in our understanding of how many marine mammals are likely to be exposed to stimuli that we associate with specific adverse effects, such as behavioral harassment or hearing threshold shifts;

3. An increase in our understanding of how marine mammals respond to stimuli expected to result in incidental take and how anticipated adverse effects on individuals may impact the population, stock, or species (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

• Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict pertinent information, e.g., received level, distance from source);

• Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict pertinent information, e.g., received level, distance from source);

• Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;

4. An increased knowledge of the affected species; or

5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

The Navy submitted a marine mammal monitoring plan as part of the IHA application for this project. It can be found on the Internet at www.nmfs.noaa.gov/pr/permits/incidental.htm.

Visual Marine Mammal Observations

The Navy will collect sighting data and behavioral responses to construction for marine mammal species observed in the region of activity during the period of activity. All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. The Navy will monitor the shutdown zone and disturbance zone before, during, and after pile driving, with observers located at the best practicable vantage points. Based on our requirements, the Marine Mammal Monitoring Plan will implement the following procedures for pile driving:

• A minimum of three Marine Mammal Observers (protected species observers (PSOs)) will be present during both impact and vibratory pile driving/removal and would be located at the best vantage point(s) in order to properly see the entire shutdown zone and as much of the disturbance zone as possible.

• During all observation periods, observers will use binoculars and the naked eye to search continuously for marine mammals.

• If the shutdown zones are obscured by fog or poor lighting conditions, pile driving at that location will not be initiated until that zone is visible. Should such conditions arise while impact driving is underway, the activity will be halted.

• The shutdown and disturbance zones around the pile will be monitored for the presence of marine mammals before, during, and after any pile driving or removal activity.

Individuals implementing the monitoring protocol will assess its effectiveness using an adaptive approach. Monitoring biologists will use their best professional judgment throughout implementation and seek improvements to these methods when deemed appropriate. Any modifications to protocol will be coordinated between NMFS and the Navy.

Data Collection

We require that observers use approved data forms. Among other pieces of information, the Navy will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, the Navy will attempt to distinguish between the number of individual animals taken and the number of incidents of take. We require that, at a minimum, the following information be collected on the sighting forms:

• Date and time that monitored activity begins or ends;

• Construction activities occurring during each observation period;

• Weather parameters (e.g., percent cover, visibility);

• Water conditions (e.g., sea state, tide state);

• Species, numbers, and, if possible, sex and age class of marine mammals;

• Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;

• Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

• Locations of all marine mammal observations; and

• Other human activity in the area.

Reporting

A draft report will be submitted within ninety calendar days of the completion of the in-water work window or sixty days prior to the requested date of issuance of any future IHA for projects at the same location, whichever comes first.. The report will include marine mammal observations pre-activity, during-activity, and post-activity during pile driving days, and will also provide descriptions of any problems encountered in deploying sound attenuating devices, any behavioral responses to construction activities by marine mammals and a complete description of all mitigation shutdowns and the results of those actions and an extrapolated total take estimate based on the number of marine mammals observed during the course of construction. A final report must be submitted within thirty days following resolution of comments on the draft report.

Estimated Take by Incidental Harassment

Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).”

All anticipated takes would be by Level A and Level B harassment resulting from vibratory and impact pile driving and involving temporary changes in behavior (Level B) and permanent threshold shift (PTS) (Level A).

Low level responses to sound (e.g., short-term avoidance of an area, short-term changes in locomotion or vocalization) are less likely to result in fitness effects on individuals that would ultimately affect the stock or the species as a whole. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individual animals could potentially be significant and could potentially translate to effects on annual rates of recruitment or survival (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Specific understanding of the activity and the effected species are necessary to predict the severity of impacts and the likelihood of fitness impacts, however, we start with the estimated number of takes, understanding that additional analysis is needed to understand what those takes mean. Given the many uncertainties in predicting the quantity and types of impacts of sound on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound, taking the duration of the activity into consideration. This practice provides a good sense of the number of instances of take, but potentially overestimates the numbers of individual marine mammals taken. In particular, for stationary activities, it is more likely that some smaller number of individuals may accrue a number of incidences of harassment per individual than for each incidence to accrue to a new individual, especially if those individuals display some degree of residency or site fidelity and the impetus to use the site (e.g., because of foraging opportunities) is stronger than the deterrence presented by the harassing activity.

The project area is not believed to be particularly important habitat for marine mammals, nor is it considered an area frequented by marine mammals. Therefore, behavioral disturbances and PTS that could result from anthropogenic sound associated with these activities are expected to affect only a relatively small number of individual marine mammals, although those effects could be recurring over the life of the project if the same individuals remain in the project vicinity.

The Navy has requested authorization for the incidental taking of small numbers of Steller sea lions, California sea lions, harbor seals, Northern elephant seals, and harbor porpoises in Port Angeles Harbor that may result from pile driving during construction activities associated with the pier construction and support facilities project. We described applicable sound thresholds for determining effects to marine mammals before describing the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating potential incidents of take in detail in our Federal Register notice of proposed authorization (April 4, 2016; 81 FR 19326). All calculated distances to and the total area encompassed by the marine mammal sound thresholds are provided in Table 3. NMFS's new acoustic guidance established new thresholds for predicting auditory injury (Level A Harassment). The Guidance indicates that there is a greater likelihood of auditory injury for Phocid pinnipeds (i.e., harbor seals) and for high-frequency cetaceans (i.e., harbor porpoise) than was considered in our notice of proposed authorization. In order to address this increased likelihood, we increased the shutdown zones required for harbor seals to 100 m and for harbor porpoise to 150 m. In addition, to account for the potential that not all harbor seals may be observed, we authorize the taking by Level A harassment of one harbor seal per day of projected construction activity.

Although radial distance and area associated with the zone ensonified to 160 dB (the behavioral harassment threshold for pulsed sounds, such as those produced by impact driving) are presented in Table 3, this zone would be subsumed by the 120-dB zone produced by vibratory driving. Thus, behavioral harassment of marine mammals associated with impact driving is not considered further here. Since the 160-dB threshold and the 120-dB threshold both indicate behavioral harassment, pile driving effects in the two zones are equivalent. Although not considered as a likely construction scenario, if only the impact driver was operated on a given day incidental take on that day would likely be lower because the area ensonified to levels producing Level B harassment would be smaller (although actual take would be determined by the numbers of marine mammals in the area on that day).

Port Angeles Harbor does not represent open water, or free field, conditions. Therefore, sounds would attenuate as they encounter land masses or bends in the canal. As a result, the calculated distance and areas of impact for the 120-dB threshold cannot actually be attained at the project area. See Figure 6-1 of the Navy's application for a depiction of the size of areas in which each underwater sound threshold is predicted to occur at the project area due to pile driving.

Marine Mammal Densities

The Navy has developed, with input from regional marine mammal experts, estimates of marine mammal densities in Washington inland waters for the Navy Marine Species Density Database (NMSDD). A technical report (Hanser et al., 2015) describes methodologies and available information used to derive these densities, which are generally considered the best available information for Washington inland waters, except where specific local abundance information is available. Here, we rely on NMSDD density information for the Steller sea lions and California see lions, and use local abundance data for harbor seals. For species without a predictable occurrence, like the harbor porpoise and Northern elephant seal, estimates are based on historical likelihood of encounter. Please see Appendix A of the Navy's application for more information on the NMSDD information.

For all species, the most appropriate information available was used to estimate the number of potential incidences of take. For harbor porpoise and Northern elephant seals, this involved reviewing historical occurrence and numbers, as well as group size to develop a realistic estimate of potential exposure. For Steller sea lion and California sea lions, this involved NMSDD data. For harbor seals, this involved site-specific data from published literature describing harbor seal research conducted in Washington and Oregon, including counts from haul-outs near Port Angeles Harbor (WDFW, 2015). Therefore, density was calculated as the maximum number of individuals expected to be present at a given time (Houghton et al., 2015) divided by the area of Port Angeles Harbor.

Description of Take Calculation

The take calculations presented here rely on the best data currently available for marine mammal populations in the Port Angeles Harbor. The formula was developed for calculating take due to pile driving activity and applied to each group-specific sound impact threshold. The formula is founded on the following assumptions:

• All marine mammal individuals potentially available are assumed to be present within the relevant area, and thus incidentally taken;

• An individual can only be taken once during a 24-h period;

• There were will be 75 total days of in-water activity and the largest ZOI equals 29.9 km2;

• Exposures to sound levels above the relevant thresholds equate to take, as defined by the MMPA.

The calculation for marine mammal takes is estimated by:

Exposure estimate = (n * ZOI) * days of total activityWhere:n = density estimate used for each species/seasonZOI = sound threshold ZOI area; the area encompassed by all locations where the SPLs equal or exceed the threshold being evaluated

n * ZOI produces an estimate of the abundance of animals that could be present in the area for exposure, and is rounded to the nearest whole number before multiplying by days of total activity.

The ZOI impact area is the estimated range of impact to the sound criteria. The relevant distances specified in Table 3 were used to calculate ZOIs around each pile. The ZOI impact area took into consideration the possible affected area of Port Angeles harbor from the pile driving site furthest from shore with attenuation due to land shadowing from bends in the shoreline. Because of the close proximity of some of the piles to the shore, the narrowness of the harbor at the project area, and the maximum fetch, the ZOIs for each threshold are not necessarily spherical and may be truncated.

While pile driving can occur any day throughout the in-water work window, and the analysis is conducted on a per day basis, only a fraction of that time (typically a matter of hours on any given day) is actually spent pile driving. Acoustic monitoring has demonstrated that Level B harassment zones for vibratory pile driving are likely to be smaller than the zones estimated through modeling based on measured source levels and practical spreading loss. Also of note is the fact that the effectiveness of mitigation measures in reducing takes is typically not quantified in the take estimation process. See Table 4 for total estimated incidents of take.

Harbor Porpoise—In Washington inland waters, harbor porpoises are most abundant in the Strait of Juan de Fuca, San Juan Island area, and Admiralty Inlet. Although harbor porpoise occur year round in the Strait of Juan de Fuca, harbor porpoises are a rare occurrence in Port Angeles Harbor, and density-based analysis does not adequately account for their unique temporal and spatial distributions. Estimates are based on historical likelihood of encounter. Based on the assumption that 3 harbor porpoise may be present intermittently in the ZOI (Hall, 2004), a total of 225 harbor porpoise exposures were estimated over 75 days of construction. These exposures would be a temporary behavioral harassment and would not impact the long-term health of individuals; the viability of the population, species, or stocks would remain stable.

California Sea Lion—The California sea lion is most common in the Strait of Juan de Fuca from fall to late spring. California sea lion haul-outs are greater than 30 miles (48 km) away. Animals could be exposed when traveling, resting, or foraging. Primarily only male California sea lions migrate through the Strait of Juan de Fuca (Jeffries et al., 2000). Based on the NMSDD data showing that 0.676 California sea lions per km2 may be present intermittently in the ZOI, 1,500 exposures were estimated for this species. These exposures would be a temporary behavioral harassment. It is assumed that this number would include multiple behavioral harassments of the same individual(s).

Steller Sea Lion—Steller sea lions occur seasonally in the Strait of Juan de Fuca from September through May. Steller sea lion haul-outs are 13 miles (21 km) away. Based on the NMSDD data showing that 0.935 Steller sea lion per km2 may be present intermittently in the ZOI, 2,100 exposures were estimated for this species. These exposures would be a temporary behavioral harassment. It is assumed that this number would include multiple behavioral harassments of the same individual(s).

Harbor Seal—Harbor seals are present year round with haul-outs in Port Angeles Harbor. Prior Navy IHAs have successfully used density-based estimates; however, in this case, density estimates were not appropriate because there is a haul-out nearby on a log boom approximately 1.7 miles (2.7 km) west of the project site that was last surveyed in March 2013 and had a total count of 73 harbor seals (WDFW 2015). Another haul-out site is 1.3 miles (2.1 km) south of the project but is across the harbor that was last surveyed in July 2010 and had a total count of 87 harbor seals (WDFW 2015). Density was calculated as the maximum number of individuals expected to be present at a given time (160 animals), times the number of days of pile activity. Based on the assumption that there could be 160 harbors seals hauled out in proximity to the ZOI, 12,000 exposures were estimated for this stock over 75 days of construction. Additionally, to account for the potential that all harbor seals may not be observed in an area that may incur PTS, we authorize the taking by Level A harassment of one harbor seal per day of projected construction activity for a total of 75 Level A takes.

We recognize that over the course of the day, while the proportion of animals in the water may not vary significantly, different individuals may enter and exit the water. Therefore, an instantaneous estimate of animals in the water at a given time may not produce an accurate assessment of the number of individuals that enter the water over the daily duration of the activity. However, no data exist regarding fine-scale harbor seal movements within the project area on time durations of less than a day, thus precluding an assessment of ingress or egress of different animals through the action area. As such, it is impossible, given available data, to determine exactly what number of individuals may potentially be exposed to underwater sound.

A typical pile driving day (in terms of the actual time spent driving) is somewhat shorter than may be assumed (i.e., 8-15 hours) as a representative pile driving day based on daylight hours. Construction scheduling and notional production rates in concert with typical delays mean that hammers are active for only some fraction of time on pile driving “days.”

Harbor seals are not likely to have a uniform distribution as is assumed through use of a density estimate, but are likely to be relatively concentrated near areas of interest such as the haul-outs or foraging areas. The estimated 160 harbor seals is the maximum number of animals at haul-outs outside of the airborne Level B behavioral harassment zone; the number of exposures to individual harbor seals foraging in the underwater behavioral harassment zone would likely be much lower.

This tells us that (1) there are likely to be significantly fewer harbor seals in the majority of the action area than the take estimate suggests; and (2) pile driving actually occurs over a limited timeframe on any given day (i.e., less total time per day than would be assumed based on daylight hours and non-continuously), reducing the amount of time over which new individuals might enter the action area within a given day. These factors lead us to believe that the approximate number of seals that may be found in the action area (160) is more representative of the number of animals exposed than the number of Level B Harassment takes requested for this species, and only represents 1.5 percent of the most recent estimate of this stock of harbor seals. Moreover, because the Navy is typically unable to determine from field observations whether the same or different individuals are being exposed, each observation is recorded as a new take, although an individual theoretically would only be considered as taken once in a given day.

Northern elephant seal—Northern elephant seals are rare visitors to the Strait of Juan de Fuca. However, individuals, primarily juveniles, have been known to sporadically haul out to molt on Dungeness Spit about 12 miles (19 km) from Port Angeles. One elephant seal was observed hauled-out at Dungeness Spit in each of the following years: 2000, 2002, 2004, 2005, and 2006 (WDFW 2015). Elephant seals are primarily present during spring and summer months. If a northern elephant seal was in the ZOI, it would likely be a solitary juvenile. Northern elephant seals are a rare occurrence in Port Angeles Harbor, and density-based analysis does not adequately account for their unique temporal and spatial distributions; therefore, estimates are based on historical likelihood of encounter. Based on the assumption that one elephant seal may be present intermittently in the ZOI, 75 exposures were calculated for this species. These exposures would be a temporary behavioral harassment.

Table 4—Number of Potential Incidental Instances of Take of Marine Mammals Within Various Acoustic Threshold ZonesSpeciesDensityUnderwaterLevel ALevel B

(120 dB) 1

% of stockCalifornia sea lion0.676 animal/sq. km *01,5000.5Steller sea lion0.935 animals/sq. km*02,1004Harbor seal160 2754 12,000/160100/1.5Northern elephant seal1 30750.04Harbor porpoise3 302252* For species with associated density, density was multiplied by largest ZOI (i.e., 29.9 km2). The resulting value was rounded to the nearest whole number and multiplied by the 75 days of activity. For species with abundance only, that value was multiplied directly by the 75 days of activity. We assume for reasons described earlier that no takes would result from airborne noise.1 The 160-dB acoustic harassment zone associated with impact pile driving would always be subsumed by the 120-dB harassment zone produced by vibratory driving. Therefore, takes are not calculated separately for the two zones.2 For this species, site-specific data was used from published literature describing research conducted in Washington and Oregon, including counts from haul-outs near Port Angeles Harbor. Therefore, density was calculated as the maximum number of individuals expected to be present at a given time.3 Figures presented are abundance numbers, not density, and are calculated as the average of average daily maximum numbers per month (see Section 6.6 in application). Abundance numbers are rounded to the nearest whole number for take estimation.4 The maximum number of harbor seal anticipated to be in the vicinity to be exposed to the sound levels is 160 animals based on counts from the two nearby haul out sites. This small number of individuals is expected to be the same animals exposed repeatedly, instead of new individuals being exposed each day. These animals, to which any incidental take would accrue, represent 1.5 percent of the most recent estimate of the stock abundance from the 2013 SAR.Analyses and Preliminary DeterminationsNegligible Impact Analysis

NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level A and Level B harassment takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, we consider other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and effects on habitat. To avoid repetition, the discussion of our analyses applies to all the species listed in Table 4, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is no information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity.

Pile driving activities associated with the pier construction project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level A (PTS) and Level B harassment (behavioral disturbance), from underwater sounds generated from pile driving. Potential takes could occur if individuals of these species are present in the ensonified zone when pile driving is happening, which is likely to occur because (1) harbor seals are frequently observed in Port Angeles harbor in two known haul-out locations; or (2) cetaceans or pinnipeds transit the outer edges of the larger Level B harassment zone outside of the harbor.

No serious injury or mortality is anticipated given the methods of installation and measures designed to minimize the possibility of serious injury to marine mammals. The potential for these outcomes is minimized through the construction method and the implementation of the planned mitigation measures. Specifically, vibratory hammers will be the primary method of installation, and this activity does not have significant potential to cause serious injury to marine mammals due to the relatively low source levels produced and the lack of potentially injurious source characteristics. Impact pile driving produces short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks. When impact driving is necessary, required measures (use of a sound attenuation system, which reduces overall source levels as well as dampening the sharp, potentially injurious peaks, and implementation of shutdown zones) significantly reduce any possibility of serious injury. Given sufficient “notice” through use of soft start, marine mammals are expected to move away from a sound source that is annoying prior to it becoming potentially injurious. The likelihood that marine mammal detection ability by trained observers is high under the environmental conditions described for Port Angeles harbor further enables the implementation of shutdowns to avoid serious injury or mortality.

Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. Repeated exposures of individuals to levels of sound that may cause Level B harassment are unlikely to result in disruption of foraging behavior. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in fitness to those individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment will be reduced to the level of least practicable impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the project area while the activity is occurring.

Effects on individuals that are taken by Level A harassment would be in the form of PTS. In this analysis, we considered the potential for small numbers of harbor seals to incur auditory injury and found that it would not impact our determinations.

For pinnipeds, no rookeries are present in the project area, but there are two haul-outs within 2.5 mi (4 km) of the project site. However, the project area is not known to provide foraging habitat of any special importance (other than is afforded by the known migration of salmonids). No cetaceans are expected within the harbor.

In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of serious injury or mortality may reasonably be considered discountable; (2) the anticipated incidences of Level B harassment consist of, at worst, temporary modifications in behavior and the anticipated incidences of Level A harassment would be in the form of PTS to a small number of only one species; (3) the absence of any major rookeries and only a few haul-out areas near or adjacent to the project site; (4) the absence of cetaceans within the harbor and generally sporadic occurrence outside of the ensonified area; (5) the absence of any other known areas or features of special significance for foraging or reproduction within the project area; and (6) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable impact. In addition, none of these stocks are listed under the ESA or designated as depleted under the MMPA. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, including those conducted in nearby locations, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals. The specified activity is not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the planned monitoring and mitigation measures, we find that the total marine mammal take from Navy's pier construction activities will have a negligible impact on the affected marine mammal species or stocks.

Small Numbers Analysis

The numbers of animals authorized to be taken for harbor porpoise, Northern elephant seal, and Steller and California sea lions would be considered small relative to the relevant stocks or populations (less than one percent for Northern elephant seal and California sea lion, less than four percent for Steller sea lion, and less than two percent for harbor porpoise) even if each estimated taking occurred to a new individual—an extremely unlikely scenario. For pinnipeds occurring in the nearshore areas, there will almost certainly be some overlap in individuals present day-to-day. Further, for the pinniped species, these takes could potentially occur only within some small portion of the overall regional stock. For example, of the estimated 296,750 California sea lions, only certain adult and subadult males—believed to number approximately 3,000-5,000 by Jeffries et al. (2000)—travel north during the non-breeding season. That number has almost certainly increased with the population of California sea lions—the 2000 SAR for California sea lions reported an estimated population size of 204,000-214,000 animals—but likely remains a relatively small portion of the overall population.

For harbor seals, takes are likely to occur only within some portion of the population, rather than to animals from the Washington inland waters stock as a whole. It is estimated that, based on counts from the two nearby haul out sites, 160 harbor seals could potentially be in the vicinity to be exposed to the sound levels. This small number of individuals is expected to be the same animals exposed repeatedly, instead of new individuals being exposed each day. These animals, to which any incidental take would accrue, represent 1.5 percent of the most recent estimate of the stock abundance from the 2013 SAR. It is estimated that one individual harbor seal per day may be exposed to sound levels that may incur PTS. This represents only 0.68% of the stock abundance.

As summarized here, the estimated numbers of potential incidents of harassment for these species are likely much higher than will realistically occur. This is because (1) we use the maximum possible number of days (75) in estimating take, despite the fact that multiple delays and work stoppages are likely to result in a lower number of actual pile driving days; and (2) sea lion estimates rely on the averaged maximum daily abundances per month, rather than simply an overall average which would provide a much lower abundance figure. In addition, potential efficacy of mitigation measures in terms of reduction in numbers and/or intensity of incidents of take has not been quantified. Therefore, these estimated take numbers are likely to be overestimates of individuals. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence Uses

There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, we have determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

Endangered Species Act

No marine mammal species listed under the ESA are expected to be affected by these activities. Therefore, we have determined that a section 7 consultation under the ESA is not required.

National Environmental Policy Act

In compliance with the NEPA of 1969 (42 U.S.C. 4321 et seq.), as implemented by the regulations published by the Council on Environmental Quality (CEQ; 40 CFR parts 1500-1508), the Navy prepared an Environmental Assessment (EA) for this project. NMFS made the Navy's EA available to the public for review and comment, in relation to its suitability for adoption by NMFS in order to assess the impacts to the human environment of issuance of an IHA to the Navy. Also in compliance with NEPA and the CEQ regulations, as well as NOAA Administrative Order 216-6, NMFS has reviewed the Navy's EA, determined it to be sufficient, and adopted that EA and signed a Finding of No Significant Impact (FONSI) in September 2016.

Authorization

As a result of these determinations, we have issued an IHA to the Navy for conducting the described pier and support facilities for the transit protection system U.S. Coast Guard Air Station/Sector Field Office Port Angeles, Washington from November 1, 2016 through February 15, 2017, and July 16 through October 31, 2017 provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

Written, telefaxed, or email comments must be received on or before November 9, 2016.

ADDRESSES:

The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species home page, https://apps.nmfs.noaa.gov, and then selecting File No. 17845 from the list of available applications.

These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.

Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to NMFS.Pr1Comments@noaa.gov. Please include the File No. in the subject line of the email comment.

Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.

FOR FURTHER INFORMATION CONTACT:

Shasta McClenahan or Carrie Hubard, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

The subject amendment to Permit No. 17845 is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR 222-226).

Permit No. 17845, issued on January 25, 2014 (79 FR 5382), authorizes the permit holder to conduct Level A and B harassment of humpback whales (Megaptera novaeangliae) during photo-identification, behavioral follows, and surface and underwater observations in Hawaii, Alaska, and California. Nine other cetacean species may be studied opportunistically and two species of pinnipeds may be incidentally harassed. The permit expires on January 31, 2019. The permit holder is requesting the permit be amended to authorize Level B playbacks for humpback whales to estimate their hearing range using behavioral observation audiometry. The sounds will be presented to a maximum of 300 humpback whales and their behavioral responses will be measured through visual and acoustic recordings including an unmanned aerial system. The research will take place from January through April, annually, in Hawaii. Only humpback whales will be targeted for active playback, but incidental harassment to additional species may occur including bottlenose dolphins (Tursiops truncatus), spinner dolphins (Stenella longirostris), false killer whales (Pseudorca crassidens), melon headed whales (Peponocephala electra), and short-finned pilot whales (Globicephala macrorhynchus).

In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of this application to the Marine Mammal Commission and its Committee of Scientific Advisors.

Call-In Information: This meeting is available to the public through the following toll-free call-in number: 888-324-9650 conference call access code number 2943297. Pete McRoberts will be the lead on the call. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Corporation will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Replays are generally available one hour after a call ends. The toll-free phone number for the replay is 888-566-0571. The end replay date: November 17, 2016, 10:59 p.m. (CT).

Status: Open.

Matters To Be ConsideredI. Meeting ConvenesII. Approval of MinutesIII. Directors ReportIV. Program UpdatesV. Public Comment

Accommodations: Anyone who needs an interpreter or other accommodations should notify the Corporation's contact person by 5:00 p.m. Friday, October 7, 2016.

Dated: September 28, 2016.Jeremy Joseph,General Counsel.[FR Doc. 2016-23962 Filed 9-29-16; 4:15 pm] BILLING CODE 6050-28-PDEPARTMENT OF DEFENSEDepartment of the Air ForceNotice of Availability of Software and Documentation for LicensingAGENCY:

Air Force Research Laboratory, Department of the Air Force.

ACTION:

Availability of MESHMORPH software and documentation for licensing.

SUMMARY:

Pursuant to the provisions of Section 801 of Public Law 113-66 (2014 National Defense Authorization Act); the Department of the Air Force announces the availability of MESHMORPH software and related documentation for Automated Computational Mesh Metamorphosis, which automatically updates an existing source mesh of three dimensional points and connectivities to a target mesh generated from a three dimensional coordinate measurement system or computer aided design system.

MESHMORPH Software is applicable to any field where a computational mesh needs to be modified to match new target geometries, such as a new design configuration or measured geometries of manufactured components. This would include almost all fields related to engineering including mechanical, biomedical, aeronautical, and aerospace engineering disciplines. These fields base their design processes on computational meshes, whether they be finite element structural and heat transfer models or computational fluid dynamics predictions. The computer graphs industry also relies heavily on updating tessellated surfaces to new locations and would also benefit from use of this software.

Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the Air University Board of Visitors' fall meeting will take place on Monday, November 14th, 2016, from approximately 8:00 a.m. to approximately 5:00 p.m. and Tuesday, November 15th, 2016, from approximately 7:30 a.m. to approximately 3:00 p.m. The meeting will be held at the Headquarters Air University, in the Commander's Conference Room, Building 800, on Maxwell Air Force Base, Alabama. The purpose of this meeting is to provide independent advice and recommendations on matters pertaining to the educational, doctrinal, and research policies and activities of Air University. Specific to this agenda includes topics relating to AU's policy and organizational structure, transformation updates, and a faculty senate out-brief and BOV ethics and membership review.

Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.155 all sessions of the Air University Board of Visitors' meetings' will be open to the public. Any member of the public wishing to provide input to the Air University Board of Visitors' should submit a written statement in accordance with 41 CFR 102-3.140(c) and section 10(a)(3) of the Federal Advisory Committee Act and the procedures described in this paragraph. Written statements can be submitted to the Designated Federal Officer at the address detailed below at any time. Statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at the address listed below at least ten calendar days prior to the meeting which is the subject of this notice. Written statements received after this date may not be provided to or considered by the Air University Board of Visitors until its next meeting. The Designated Federal Officer will review all timely submissions with the Air University Board of Visitors' Board Chairperson and ensure they are provided to members of the Board before the meeting that is the subject of this notice. Additionally, public attendance at the AU/BOV meeting shall be accommodated on a first-come, first-served basis up to the reasonable and safe capacity of the meeting room. Any member of the public wishing to attend this meeting should contact the Designated Federal Officer listed below at least ten calendar days prior to the meeting for information on base entry procedures.

This notice is to advise interested parties of a two-year extension of a demonstration project entitled “TRICARE Co-Pay Waiver at Captain James A. Lovell Federal Health Care Center (FHCC) Demonstration Project.” The original waiver notice was published on September 27, 2010 (75 FR 59237-59238).

DATES:

Effective Date: This two-year extension will be effective from October 1, 2016 to September 30, 2018.

For additional information on the TRICARE co-pay waiver demonstration at the Captain James A. Lovell Federal Health Care Center (FHCC) demonstration project, please see 75 FR 59237-59238. Under this demonstration, there would be no deductibles, cost shares, or co-pays for eligible beneficiaries seeking care at the FHCC, under the authority of 10 U.S.C. 1092(a)(1)(B). The original demonstration notice explained that the co-pay waiver demonstration would be used to determine if increased utilization at FHCC actually occurred as a result of eliminated co-payments, which would in turn influence decisions regarding financial integration at future Department of Defense (DoD)/Department of Veterans Affairs (VA) models of this nature. A report on the demonstration project concluded that utilization increased at FHCC during the time of the co-pay waiver demonstration project. Admission and encounter utilization data from 2010 to 2014 shows that DoD utilization of FHCC increased by 10,295. This demonstration is integral to the success of the integration effort at FHCC; without it, FHCC would see a marked reduction in DoD beneficiaries.

B. Description of Extension of Demonstration Project

Under this demonstration, DoD has waived TRICARE co-payments for DoD beneficiaries seen at the FHCC. The National Defense Authorization Act (NDAA) for fiscal year (FY) 2010 Section 1701 requires a report to Congress evaluating the exercise of authorities in that title at FHCC. That report was delivered on July 26, 2016, and recommends continuation of the FHCC demonstration project. If Congress agrees, it is likely Congress will clarify that access to care under section 1705 should apply to the entire joint facility and not be limited to the DoD assets within the facility. If so, that will negate the requirement for further extensions to the TRICARE co-pay waiver demonstration project beyond FY17.

In order to allow seamless continuation of services to DoD beneficiaries at FHCC, the TRICARE co-pay waiver is extended through September 30, 2018. This waiver applies to all inpatient, outpatient, and ancillary services, and all outpatient prescription drugs provided at FHCC. This waiver is consistent with current policies and procedures followed at all military treatment facilities. According to an Independent Government Cost Estimate (IGCE), the estimated two-year impact for the co-pay waiver in FY2017 and FY2018 is $246,499.

C. Evaluation

An independent evaluation was performed and determined that without this waiver, DoD beneficiary utilization of the FHCC in North Chicago would have significantly decreased. Since DoD and VA have recommended to Congress to continue the demonstration project, a permanent solution regarding DoD beneficiary co-pays is expected to be in place for FY18 and will ensure that DoD beneficiaries are not levied cost shares, as FHCC represents the former Naval Hospital Great Lakes.

This committee's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(d). The charter and contact information for the Committee's Designated Federal Officer (DFO) can be obtained at http://www.facadatabase.gov/. The Committee provides the Secretary of Defense and the Deputy Secretary of Defense independent advice and recommendations on the DoD program to commemorate the 50th Anniversary of the Vietnam War. The Committee shall be composed of no more than 20 members who represent Vietnam Veterans, their families, and the American public. Members who are not full-time or permanent part-time Federal officers or employees are appointed as experts or consultants pursuant to 5 U.S.C. 3109 to serve as special government employee members. Members who are full-time or permanent part-time Federal officers or employees are appointed pursuant to 41 CFR 102-3.130(a) to serve as regular government employee members. Each member is appointed to provide advice on behalf of the Government on the basis of their best judgment without representing any particular point of view and in a manner that is free from conflict of interest. Except for reimbursement of official Committee-related travel and per diem, members serve without compensation. The DoD, as necessary and consistent with the Committee's mission and DoD policies and procedures, may establish subcommittees, task forces, or working groups to support the Committee, and all subcommittees must operate under the provisions of FACA and the Government in the Sunshine Act. Subcommittees will not work independently of the Committee and must report all recommendations and advice solely to the Committee for full deliberation and discussion. Subcommittees, task forces, or working groups have no authority to make decisions and recommendations, verbally or in writing, on behalf of the Committee. No subcommittee or any of its members can update or report, verbally or in writing, directly to the DoD or any Federal officers or employees. The Committee's DFO, pursuant to DoD policy, must be a full-time or permanent part-time DoD employee, and must be in attendance for the duration of each and every Committee/subcommittee meeting. The public or interested organizations may submit written statements to the Committee membership about the Committee's mission and functions. Such statements may be submitted at any time or in response to the stated agenda of planned Committee meetings. All written statements must be submitted to the Committee's DFO who will ensure the written statements are provided to the membership for their consideration.

In accordance with section 427A of the Higher Education Act of 1965, as amended, (HEA), 20 U.S.C. 1077a, the Chief Operating Officer for Federal Student Aid announces the variable interest rates for the period July 1, 2016, through June 30, 2017, for certain loans made under the Federal Family Education Loan (FFEL) Program. The Chief Operating Officer takes this action to give notice of FFEL Program loan variable interest rates to the public.

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Section 427A of the HEA, provides formulas for determining the interest rates charged to borrowers on loans made under the Federal Family Education Loan (FFEL) Program, including Federal Subsidized and Unsubsidized Stafford Loans, Federal PLUS Loans, and Federal Consolidation Loans.

The FFEL Program includes loans with variable interest rates and loans with fixed interest rates. Most loans made under the FFEL Program before July 1, 2006, have variable interest rates that change each year. In most cases, the variable interest rate formula that applies to a particular loan depends on the date of the first disbursement of the loan. The variable rates are determined annually and are effective for each 12-month period beginning July 1 of one year and ending June 30 of the following year.

Under section 427A(l) of the HEA, FFEL Program loans first disbursed on or after July 1, 2006, and before July 1, 2010, have a fixed interest rate. The Chief Operating Officer is discontinuing providing the fixed interest rates for FFEL Program loans first disbursed on or after July 1, 2006 and before July 1, 2010. Interest rates for these loans may be found in a Federal Register notice published on September 15, 2015 (80 FR 55342).

Federal Consolidation Loans made prior to November 13, 1997, and on or after October 1, 1998, have a fixed interest rate that is based on the weighted average of the loans that are consolidated.

Interest rates for Federal Consolidation Loans made between November 13, 1997 and September 30, 1998 are provided in Chart 3.

FFEL variable interest rates are based on formulas that use the bond equivalent rate of the 91-day Treasury bills auctioned at the final auction held before June 1 of each year plus a statutorily established add-on. These formulas apply to: All Federal Subsidized and Unsubsidized Stafford Loans first disbursed before October 1, 1992, that have been converted to variable rate loans; all Federal Subsidized and Unsubsidized Stafford Loans first disbursed on or after October 1, 1992, and before July 1, 2006; Federal PLUS Loans first disbursed on or after July 1, 1998, and before July 1, 2006; and Federal Consolidation Loans for which the Federal Consolidation Loan application was received on or after November 13, 1997, and before October 1, 1998. In each case, the calculated rate is capped by a maximum interest rate. The bond equivalent rate of the 91-day Treasury bills auctioned on May 31, 2016, which is used to calculate the interest rates on these loans, is 0.345 rounded up to 0.35 percent.

For Federal PLUS loans first disbursed before July 1, 1998, the interest rate is based on the weekly average of the one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System on the last day of the calendar week ending on or before June 26 of each year, plus a statutory add-on percentage. The calculated rate is capped by a maximum interest rate. The weekly average of the one-year constant maturity Treasury yield published on June 27, 2016, which is used to calculate the interest rate on these loans, is 0.55 percent.

This notice includes three charts containing specific information on the calculation of variable interest rates for loans made under the FFEL Program:

Chart 1 contains information on the interest rates for Federal Subsidized and Unsubsidized Stafford Loans that were made as fixed-rate loans, but were subsequently converted to variable-rate loans.

Chart 3 contains information on the interest rates for variable-rate Federal PLUS Loans, certain Federal Consolidation Loans, and Consolidation Loans that include loans made by the U.S. Department of Health and Human Services under subpart I of part A of title VII of the Public Health Service Act.

7/1/19887/23/19928.00%, increasing to 10.00%10.000.353.253.607/23/199210/1/19928.00%, increasing to 10.00%10.000.353.253.607/23/19927/1/19947.00%7.000.353.103.457/23/19927/1/19948.00%8.000.353.103.457/23/19927/1/19949.00%9.000.353.103.457/23/19927/1/19948.00%, increasing to 10.00%10.000.353.103.45Note: The FFEL Program loans represented by the second row of the chart were only made to “new borrowers” on or after July 23, 1992. Whether the FFEL Program loans represented by the third through sixth rows of the chart were made to a specific borrower depends on the interest rate on the borrower's existing loans (see the `Original Fixed Interest Rate' column in Chart 1) at the time the borrower received the loan(s) on or after July 23, 1992 and prior to July 1, 1994.

In Charts 2 and 3, a dagger following a date in a cohort field indicates that the trigger for the rate to apply is a period of enrollment for which the loan was intended either “ending before” or “beginning on or after” the date in the cohort field.

Chart 2—Variable-Rate Federal Subsidized and Unsubsidized Stafford Loans Interest Rates in Effect for the Period 7/1/2016 Through 6/30/2017CohortFirst disbursed on or afterFirst disbursed beforeMax. rate

(%)

91-Day T-bill rate

(%)

MarginIn-school, grace, deferment

(%)

All other

periods

(%)

Total rateIn-school, grace, deferment

(%)

All other

periods

(%)

10/1/19927/1/19949.000.353.103.103.453.457/1/19947/1/1994 †9.000.353.103.103.453.457/1/19947/1/19958.250.353.103.103.453.457/1/19957/1/19988.250.352.503.102.853.457/1/19987/1/20068.250.351.702.302.052.65Note: The FFEL Program loans represented in the first row in Chart 2 were only made to “new borrowers” on or after October 1, 1992. The FFEL Program loans represented in the second row in Chart 2 were only made to “new borrowers” on or after July 1, 1994. The FFEL Program loans represented in the third row in Chart 2 must—in addition to having been first disbursed on or after July 1, 1994, and before July 1, 1995—have been made for a period of enrollment that began on or included July 1, 1994.Chart 3—Variable-Rate Federal PLUS, SLS, and Consolidation Loans Interest Rates in Effect for the Period 7/1/2016 Through 6/30/2017Loan typeCohortFirst

The last row in Chart 3 refers to portions of Federal Consolidation Loans attributable to loans made by the U.S. Department of Health and Human Services under subpart I of part A of title VII of the Public Health Service Act.

Note: No new loans have been made under the FFEL Program since June 30, 2010.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Program Authority:

20 U.S.C. 1071 et seq.

Dated: September 27, 2016.James W. Runcie,Chief Operating Officer, Federal Student Aid.[FR Doc. 2016-23766 Filed 9-30-16; 8:45 am] BILLING CODE 4000-01-PDEPARTMENT OF EDUCATION[Docket No.: ED-2016-ICCD-0103]Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Designation as an Eligible Institution Under the Title III and Title V Programs and To Request a Waiver of the Non-Federal Cost Share Reimbursement (1894-0001)AGENCY:

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501 et seq.), ED is proposing an extension of an existing information collection.

DATES:

Interested persons are invited to submit comments on or before November 2, 2016.

ADDRESSES:

To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2016-ICCD-0103. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E-347, Washington, DC 20202-4537.

The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

Title of Collection: Designation As An Eligible Institution Under the Title III and Title V Programs and to Request A Waiver of the Non-Federal Cost Share Reimbursement (1894-0001).

Abstract: This collection of information is necessary in order for the Secretary of Education to designate an institution of higher education eligible to apply for funding under Title III, Part A and Title V of the Higher Education Act of 1965, as amended. An institution must apply to the Secretary to be designated as an eligible institution. The programs authorized include the Strengthening Institutions, Alaskan Native and Native Hawaiian-Serving Institutions, Asian-American and Native American Pacific Islander-Serving Institutions, Native American Serving Institutions, Hispanic-Serving Institutions, Hispanic-Serving Institutions (Science, Technology, Engineering and Math and Articulation), Promoting Postbaccalaureate Opportunities for Hispanic Americans, and Predominantly Black Institutions Programs. These programs award discretionary grants to eligible institutions of higher education so that they might increase their self-sufficiency by improving academic programs, institutional management and fiscal stability.

This collection of information is gathered electronically by the Department for the purpose of determining an institution's eligibility to participate in the Title III and Title V programs based on its enrollment of needy students and low average educational and general (E&G) expenditures per full-time equivalent undergraduate student. This collection also allows an institution to request a waiver of certain non-Federal cost-share requirements under Federal Work-Study Program, Federal Supplemental Educational Opportunity Grant, Student Support Services Program and the Undergraduate International Studies and Foreign Language Program.

The collection is paired with a computational exercise that results in the simultaneous publication of an Eligibility Matrix, a listing of postsecondary institutions potentially eligible to apply for grants in the Institutional Service grant programs. Criteria derived from applicable legislation and regulations are applied to enrollment and financial data from Department sources to determine the eligibility of each institution for each program. Only those institutions that either do not meet the financial criteria or do not appear in the eligibility matrix need to go through the application process.

The results of the application process are a determination of eligibility for grant application and waiver, and updated information on institutional eligibility which is added to the EM.

In accordance with section 455(b)(10) of the Higher Education Act of 1965, as amended, (HEA), (20 U.S.C. 1087e(b)(10)) the Chief Operating Officer for Federal Student Aid announces the interest rates for loans made under the William D. Ford Federal Direct Loan (Direct Loan) Program prior to July 1, 2013. For loans that have a variable interest rate, the rates announced in this notice are in effect for the period July 1, 2016 through June 30, 2017. The Chief Operating Officer takes this action to give notice of Direct Loan interest rates to the public.

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

Individuals with disabilities can obtain this document in an accessible format (e.g., Braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans that were first disbursed before July 1, 2006, and Direct Consolidation Loans for which the application was received before February 1, 1999, have variable interest rates that are determined each year in accordance with formulas specified in section 455(b) of the HEA. The variable interest rate formula that applies to a particular loan depends on the date of the first disbursement of the loan or, for some Direct Consolidation Loans, the date the application for the loan was received. The variable rates are determined annually and are effective for each 12-month period beginning July 1 of one year and ending June 30 of the following year.

Except for Direct PLUS Loans that were first disbursed before July 1, 1998, the variable interest rates for most types of Direct Loans are based on formulas that use the bond equivalent rates of the 91-day Treasury bills auctioned at the final auction held before June 1 of each year, plus a statutory add-on percentage. In each case, the calculated rate is capped by a maximum interest rate. The bond equivalent rate of the 91-day Treasury bills auctioned on May 31, 2016, which is used to calculate the interest rates on these loans, is 0.345, rounded up to 0.35 percent.

The interest rate for Direct PLUS Loans that were first disbursed on or after July 1, 1994, and before July 1, 1998, is based on the weekly average of the one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System on the last day of the calendar week ending on or before June 26 of each year, plus a statutory add-on percentage. The calculated rate is capped by a maximum interest rate. The weekly average of the one-year constant maturity Treasury yield published on June 27, 2016, which is used to calculate the interest rate on these loans, is 0.55 percent.

Charts 1 Through 4 in This Notice Show the Interest Rates for Variable-Rate Direct Loans That Are in Effect for the Period July 1, 2016 Through June 30, 2017CohortFirst disbursed on

or after

First disbursed

before

Maximum rate

(%)

Index rate91-Day

T-Bill rate

(%)

MarginIn-school,

grace, deferment

All other

periods

(%)

Total rateIn-school,

grace, deferment

(%)

All other

periods

(%)

7/1/19947/1/19958.250.353.103.103.453.457/1/19957/1/19988.250.352.503.102.853.457/1/19987/1/20068.250.351.702.302.052.65Chart 2—Variable-Rate Direct PLUS Loans Interest Rates in Effect for the Period 7/1/2016 Through 6/30/2017CohortFirst disbursed on

or after

First disbursed

before

Maximum rate

(%)

Index rate91-Day T-Bill rate

(%)

1-Year constant treasury maturity

(%)

Margin

(%)

Total rate

(%)

7/1/19947/1/19989.000.553.103.657/1/19987/1/20069.000.353.103.45Chart 3—Variable-Rate Direct Subsidized and Direct Unsubsidized Consolidation Loans Interest Rates in Effect for the Period 7/1/2016 Through 6/30/2017CohortFirst disbursed on or afterFirst disbursed beforeMaxmum rate

(%)

Index rate91-Day

T-Bill rate

(%)

MarginIn-school,

grace,

deferment

(%)

All other

periods

(%)

Total rateIn-school,

grace,

deferment

(%)

All other

periods

(%)

7/1/19947/1/19958.250.353.103.103.453.457/1/19957/1/19988.250.352.503.102.853.457/1/199810/1/19988.250.351.702.302.052.65First disbursed on or

after

Application received

before

10/1/199810/1/19988.250.351.702.302.052.65%Application received on or

after

Application received

before

10/1/19982/1/19998.250.352.302.302.652.65Chart 4—Variable-Rate Direct PLUS Consolidation Loans Interest Rates in Effect for the Period 7/1/2016 Through 6/30/2017CohortFirst disbursed on or afterFirst disbursed beforeMaximum rate

(%)

Index rate91-Day

T-Bill rate

(%)

1-Year

constant

treasury

maturity

(%)

MarginIn-school,

grace,

deferment

(%)

All other

periods

(%)

Total rateIn-school,

race,

deferment

(%)

All other

periods

(%)

7/1/19947/1/19989.000.553.103.103.653.657/1/199810/1/19989.000.353.103.103.453.45First disbursed on or afterApplication received before10/1/199810/1/19989.000.353.103.103.453.45Application received

on or after

Application received

before

10/1/19982/1/19998.250.352.302.302.652.65Fixed-Rate Direct Loans

Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed on or after July 1, 2006 and before July 1, 2013, and Direct Consolidation Loans for which the application was received on or after February 1, 1999, have fixed interest rates.

Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed on or after July 1, 2006 and before July 1, 2013 have various fixed interest rates that are specified in section 455(b)(7) of the HEA. These fixed rates are shown in Chart 5.

Direct Consolidation Loans for which the application was received on or after February 1, 1999 and before July 1, 2013 have a fixed interest rate that is determined in accordance with sections 455(b)(6)(D) and 455(b)(7)(C) of the HEA. The fixed interest rate for these Direct Consolidation Loans is equal to the weighted average of the loans that are consolidated, rounded up to the nearest higher 1/8 of one percent, but the rate may not exceed 8.25 percent.

Chart 5 shows the fixed interest rates for Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed before July 1, 2013, and for Direct Consolidation Loans for which the application was received on or after February 1, 1999 and before July 1, 2013.

SubsidizedUndergraduates7/1/20067/1/20086.80SubsidizedUndergraduates7/1/20087/1/20096.00SubsidizedUndergraduates7/1/20097/1/20105.60SubsidizedUndergraduates7/1/20107/1/20114.50SubsidizedUndergraduates7/1/20117/1/20133.40SubsidizedGraduate/Professional Students7/1/20067/1/20126.80UnsubsidizedAll7/1/20067/1/20136.80PLUSParents and Graduate/Professionals7/1/20067/1/20137.90Application received on or afterApplication received beforeConsolidationN/A2/1/19997/1/2013Weighted average of rates on the loans being consolidated, rounded to nearest higher 1/8 of 1 percent, not to exceed 8.25%7/1/2013Weighted average of rates on the loans being consolidated, rounded to nearest higher 1/8 of 1 percentNote:

Interest rates for Direct Subsidized Loans, Direct Unsubsidized Loans, and Direct PLUS Loans first disbursed on or after July 1, 2013 and before July 1, 2016 are published in earlier Federal Register notices, as follows:

• For loans first disbursed on or after July 1, 2013, and prior to July 1, 2014, see 78 FR 59011.

• For loans first disbursed on or after July 1, 2014, and prior to July 1, 2015, see 79 FR 37301.

• For loans first disbursed on or after July 1, 2015, and prior to July 1, 2016, see 80 FR 42488.

• For loans first disbursed on or after July 1, 2016, and prior to July 1, 2017, see 81 FR 38159.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

The refund effective date in Docket No. EL16-116-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

Any interested person desiring to be heard in Docket No. EL16-116-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2016), within 21 days of the date of issuance of the order.

This is a supplemental notice in the above-referenced proceeding of City Point Energy Center, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 17, 2016.

The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email FERCOnlineSupport@ferc.gov. or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

This is a supplemental notice in the above-referenced proceeding of Cimarron Bend Wind Project I, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 17, 2016.

The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email FERCOnlineSupport@ferc.gov. or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380, the Office of Energy Projects has reviewed the application for an original license for the proposed 400-megawatt Gordon Butte Pumped Storage Project, which would be located approximately 3 miles west of the town of Martinsdale in Meagher County, Montana, and has prepared an Environmental Assessment (EA) for the project. The project would not occupy any federal lands.

The EA contains staff's analysis of the potential environmental impacts of construction and operation of the project and concludes that licensing the project, with appropriate environmental measures, would not constitute a major federal action that would significantly affect the quality of the human environment. Based on a review of the comments received in response to the issuance of this EA, the Commission may issue a final EA.

A copy of the EA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access documents. For assistance, contact FERC Online Support at FERCOnlineSupport@ferc.gov, (866) 208-3676 (toll free), or (202) 502-8659 (TTY).

You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

Any comments should be filed within 30 days from the date of this notice.

The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support. In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. The first page of any filing should include docket number P-13642-003.

This is a supplemental notice in the above-referenced proceeding of Nicolis, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 17, 2016.

The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email FERCOnlineSupport@ferc.gov. or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

This is a supplemental notice in the above-referenced proceeding of Tropico, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 17, 2016.

The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email FERCOnlineSupport@ferc.gov. or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

Take notice that on September 26, 2016, Windham Solar LLC filed an amendment to the September 12, 2016 filed petition for enforcement pursuant to section 210 of Public Utility Regulatory Policies Act of 1978 (PURPA), 16 U.S.C. 824a-3.

Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.

The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email FERCOnlineSupport@ferc.gov, or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Central Virginia Connector Project involving construction and operation of facilities by Columbia Gas Transmission, L.L.C. (Columbia) in Louisa and Goochland Counties, Virginia. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.

This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before October 27, 2016.

If you sent comments on this project to the Commission before the opening of this docket on August 12, 2016, you will need to file those comments in Docket No. CP16-493-000 to ensure they are considered as part of this proceeding.

This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.

If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.

Columbia provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (www.ferc.gov).

Public Participation

For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or efiling@ferc.gov. Please carefully follow these instructions so that your comments are properly recorded.

(1) You can file your comments electronically using the eComment feature on the Commission's Web site (www.ferc.gov) under the link to Documents and Filings. This is an easy method for submitting brief, text-only comments on a project;

(2) You can file your comments electronically by using the eFiling feature on the Commission's Web site (www.ferc.gov) under the link to Documents and Filings. With eFiling, you can provide comments in a variety of formats by attaching them as a file with your submission. New eFiling users must first create an account by clicking on “eRegister.” If you are filing a comment on a particular project, please select “Comment on a Filing” as the filing type; or

(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP16-493-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.

Summary of the Proposed Project

Columbia proposes to replace three Solar Saturn units with one Solar Centaur 50 unit at the existing Louisa Compressor Station, convert the replaced units to standby, increase the certificated horsepower (HP) at the Louisa Compressor Station from 4,050 HP to 6,130 HP, install pipe and valve modifications to make the existing point of delivery between Columbia's Mainline VM-108 and VM-109 at Boswell's Tavern Compressor Station bi-directional, install a new point of delivery meter station adjacent to Columbia's Goochland Compressor Station, and install other appurtenant facilities.

The Central Virginia Connector Project is in Louisa and Goochland Counties, Virginia and would provide 45,000 cubic feet per day of natural gas on its system and modernize compression at the Louisa Compressor Station.

The general location of the project facilities is shown in appendix 1.1

1 The appendices referenced in this notice would not appear in the Federal Register. Copies of appendices were sent to all those receiving this notice in the mail and are available at www.ferc.gov using the link called “eLibrary” or from the Commission's Public Reference Room, 888 First Street NE., Washington, DC 20426, or call (202) 502-8371. For instructions on connecting to eLibrary, refer to the last page of this notice.

Land Requirements for Construction

Construction of the proposed facilities would temporarily disturb about 13.3 acres of land. Following construction, Columbia Gas would maintain about 0.9 acre for permanent operation of the project's facilities; the remaining acreage would be restored and revert to former uses.

The EA Process

The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us 2 to discover and address concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this notice, the Commission requests public comments on the scope of the issues to address in the EA. We will consider all filed comments during the preparation of the EA.

2 “We,” “us,” and “our” refer to the environmental staff of the Commission's Office of Energy Projects.

In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:

• geology and soils;

• land use;

• water resources, fisheries, and wetlands;

• cultural resources;

• vegetation and wildlife;

• air quality and noise;

• endangered and threatened species;

• public safety; and

• cumulative impacts.

We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.

The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.

With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.3 Agencies that would like to request cooperating agency status should follow the instructions for filing comments provided under the Public Participation section of this notice.

3 The Council on Environmental Quality regulations addressing cooperating agency responsibilities are at Title 40, Code of Federal Regulations, Part 1501.6.

Consultations Under Section 106 of the National Historic Preservation Act

In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.4 We will define the project-specific Area of Potential Effects (APE) in consultation with the SHPO as the project develops. On natural gas facility projects, the APE at a minimum encompasses all areas subject to ground disturbance (examples include construction right-of-way, contractor/pipe storage yards, compressor stations, and access roads). Our EA for this project will document our findings on the impacts on historic properties and summarize the status of consultations under section 106.

4 The Advisory Council on Historic Preservation's regulations are at Title 36, Code of Federal Regulations, Part 800. Those regulations define historic properties as any prehistoric or historic district, site, building, structure, or object included in or eligible for inclusion in the National Register of Historic Places.

Environmental Mailing List

The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.

If we publish and distribute the EA, copies of the EA will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).

Becoming an Intervenor

In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the “Document-less Intervention Guide” under the “e-filing” link on the Commission's Web site. Motions to intervene are more fully described at http://www.ferc.gov/resources/guides/how-to/intervene.asp.

Additional Information

Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site at www.ferc.gov using the “eLibrary” link. Click on the eLibrary link, click on “General Search” and enter the docket number, excluding the last three digits in the Docket Number field (i.e., CP16-493). Be sure you have selected an appropriate date range. For assistance, please contact FERC Online Support at FercOnlineSupport@ferc.gov or toll free at (866) 208-3676, or for TTY, contact (202) 502-8659. The eLibrary link also provides access to the texts of formal documents issued by the Commission, such as orders, notices, and rulemakings.

In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to www.ferc.gov/docs-filing/esubscription.asp.

Finally, public meetings or site visits would be posted on the Commission's calendar located at www.ferc.gov/EventCalendar/EventsList.aspx along with other related information.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

This is a supplemental notice in the above-referenced proceeding of Grant Plains Wind, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure 18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 17, 2016.

The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email FERCOnlineSupport@ferc.gov. or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications.

DATES:

Comments must be received on or before November 2, 2016.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number and the file symbol of interest as shown in the body of this document, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

SUPPLEMENTARY INFORMATION:I. General InformationA. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

B. What should I consider as I prepare my comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

II. Registration Applications

EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the provisions of FIFRA section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA is hereby providing notice of receipt and opportunity to comment on these applications. Notice of receipt of these applications does not imply a decision by the Agency on these applications.

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the payment of an annual maintenance fee is required to keep pesticide registrations in effect. The fee due last January 15, 2016, has gone unpaid for 314 registrations. If the fee is not paid, the EPA Administrator may cancel these registrations by order and without a hearing; orders to cancel these registrations have been issued.

Product-specific status inquiries may be made by calling toll-free, 1-800-444-7255.

SUPPLEMENTARY INFORMATION:I. General InformationA. Does this action apply to me?

This action is directed to the public in general. Although this action may be of particular interest to persons who produce or use pesticides, the Agency has not attempted to describe all the specific entities that may be affected by this action.

B. How can I get copies of this document and other related information?

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0548, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

Complete lists of registrations canceled for non-payment of the maintenance fee are also available for reference in the OPP Docket.

II. Background

Section 4(i)(5) of FIFRA (7 U.S.C. 136a-1(i)(5)) requires that all pesticide registrants pay an annual registration maintenance fee, due by January 15 of each year, to keep their registrations in effect. This requirement applies to all registrations granted under FIFRA section 3 (7 U.S.C. 136a) as well as those granted under FIFRA section 24(c) (7 U.S.C. 136v(c)) to meet special local needs. Registrations for which the fee is not paid are subject to cancellation by order and without a hearing.

Under FIFRA, the EPA Administrator may reduce or waive maintenance fees for minor agricultural use pesticides when it is determined that the fee would be likely to cause significant impact on the availability of the pesticide for the use.

In fiscal year 2016, maintenance fees were collected in one billing cycle. In late October of 2015, all holders of either FIFRA section 3 registrations or FIFRA section 24(c) registrations were sent lists of their active registrations, along with forms and instructions for responding. They were asked to identify which of their registrations they wished to maintain in effect, and to calculate and remit the appropriate maintenance fees. Most responses were received by the statutory deadline of January 15. A notice of intent to cancel was sent in April of 2016 to companies who did not respond and to companies who responded, but paid for less than all of their registrations. Since mailing the notices of intent to cancel, EPA has maintained a toll-free inquiry number through which the questions of affected registrants have been answered.

In fiscal year 2016, the Agency has waived the fee for 304 minor agricultural use registrations at the request of the registrants. Maintenance fees have been paid for about 15,921 FIFRA section 3 registrations, or about 96% of the registrations on file in October 2015. Fees have been paid for about 1,901 FIFRA section 24(c) registrations, or about 87% of the total on file in October 2015. Cancellations for non-payment of the maintenance fee affect about 307 FIFRA section 3 registrations and about 7 FIFRA section 24(c) registrations.

The cancellation orders generally permit registrants to continue to sell and distribute existing stocks of the canceled products until January 15, 2017, 1 year after the date on which the fee was due. Existing stocks already in the hands of dealers or users, however, can generally be distributed, sold, or used legally until they are exhausted. Existing stocks are defined as those stocks of a registered pesticide product which are currently in the United States and which have been packaged, labeled, and released for shipment prior to the effective date of the cancellation order.

The exceptions to these general rules are cases where more stringent restrictions on sale, distribution, or use of the products have already been imposed, through special reviews or other Agency actions. These general provisions for disposition of stocks should serve in most cases to cushion the impact of these cancellations while the market adjusts.

III. Listing of Registrations Canceled for Non-Payment

Table 1 of this unit lists all of the FIFRA section 24(c) registrations, and Table 2 of this unit lists all of the FIFRA section 3 registrations which were canceled for non-payment of the 2016 maintenance fee. These registrations have been canceled by order and without hearing. Cancellation orders were sent to affected registrants via certified mail in the past several days. The Agency is unlikely to rescind cancellation of any particular registration unless the cancellation resulted from Agency error.

The effective date of cancellation will be the date of the cancellation order. The orders effecting these requested cancellations will generally permit a registrant to sell or distribute existing stocks until January 15, 2017, 1 year after the date on which the fee was due.

Existing stocks are those stocks of registered pesticide products which are currently in the United States and which have been packaged, labeled, and released for shipment prior to the effective date of the cancellation order. Unless the provisions of an earlier order apply, existing stocks already in the hands of dealers or users can be distributed, sold, or used legally until they are exhausted, provided that such further sale and use comply with the EPA-approved label and labeling of the affected product. Exception to these general rules will be made in specific cases when more stringent restrictions on sale, distribution, or use of the products or their ingredients have already been imposed, as in a special review action, or where the Agency has identified significant potential risk concerns associated with a particular chemical.

As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.

DATES:

Written PRA comments should be submitted on or before December 2, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.

SUPPLEMENTARY INFORMATION:

OMB Control Number: 3060-XXXX.

Title: Receiving Written Consent for Communication with Base Stations in Canada; Issuing Written Consent to Licensees from Canada for Communication with Base Stations in the U.S.; Description of Interoperable Communications with Licensees from Canada.

Form Number: N/A.

Type of Review: New collection.

Respondents: State, local, or tribal governments.

Number of Respondents and Responses: 3,224 respondents; 3,224 responses.

Estimated Time per Response: 0.5 hours-1 hour.

Frequency of Response: On occasion reporting requirement.

Obligation to Respond: Written consent from the licensee of a base station repeater is required before first responders from the other country can begin communicating with that base stations repeater. Applicants are advised to include a description of how they intend to interoperate with licensees from Canada when filing applications to operate under any of the scenarios described in Public Notice DA 16-739 in order to ensure that the application is not inadvertently rejected by Canada. Statutory authority for these collections are contained in 47 U.S.C. 151, 154, 301, 303, 307, 308, 309, 310, 316, 319, 325(b), 332, 336(f), 338, 339, 340, 399b, 403, 534, 535, 1404, 1452, and 1454 of the Communications Act of 1934.

Total Annual Burden: 5,642 hours.

Total Annual Cost: None.

Privacy Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: Applicants who include a description of how they intend to interoperate with licensees from Canada need not include any confidential information with their description. Nonetheless, there is a need for confidentiality with respect to all applications filed with the Commission through its Universal Licensing System (ULS). Although ULS stores all information pertaining to the individual license via an FCC Registration Number (FRN), confidential information is accessible only by persons or entities that hold the password for each account, and the Commission's licensing staff. Information on private land mobile radio licensees is maintained in the Commission's system of records, FCC/WTB-1, “Wireless Services Licensing Records.” The licensee records will be publicly available and routinely used in accordance with subsection (b) of the Privacy Act. TIN Numbers and material which is afforded confidential treatment pursuant to a request made under 47 CFR 0.459 will not be available for Public inspection. Any personally identifiable information (PII) that individual applicants provide is covered by a system of records, FCC/WTB-1, “Wireless Services Licensing Records,” and these and all other records may be disclosed pursuant to the Routine Uses as stated in this system of records notice.

Needs and Uses: This collection will be submitted as a new collection after this 60-day comment period to the Office of Management and Budget (OMB) in order to obtain the full three-year clearance. The purpose of requiring an agency to issue written consent before allowing first responders from the other country to communicate with its base station repeater ensures to that the licensee of that base stations repeater (host licensee) maintains control and is responsible for its operation at all times. The host licensee can use the written consent to ensure that first responders from the other country understand the proper procedures and protocols before they begin communicating with its base station repeater. Furthermore, when reviewing applications filed by border area licensees, Commission staff will use any description of how an applicant intends to interoperate with licensees from Canada, including copies of any written agreements, in order to coordinate the application with Innovation, Science and Economic Development Canada (ISED) and reduce the risk of an inadvertent rejection by ISED.

The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below.

The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.

Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 28, 2016.

Board of Governors of the Federal Reserve System, September 28, 2016.Michele Taylor Fennell,Assistant Secretary of the Board.[FR Doc. 2016-23824 Filed 9-30-16; 8:45 am] BILLING CODE 6210-01-PFEDERAL RESERVE SYSTEMChange in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company

The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).

The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 18, 2016.

1. John R. Rice, Brookings, South Dakota, and Mary D. Rice, Boston, Massachusetts; individually and as a group acting concert, to retain shares of Citizens State Bank of Arlington, Arlington, South Dakota.

B. Federal Reserve Bank of New York (Ivan Hurwitz, Vice President) 33 Liberty Street, New York, New York 10045-0001. Comments can also be sent electronically to Comments.applications@ny.frb.org:

Notice for comment regarding the Federal Reserve proposal to extend without revision, the clearance under the Paperwork Reduction Act for the following information collection activity.

SUMMARY:

The Board of Governors of the Federal Reserve System (Board or Federal Reserve) invites comment on proposals to extend without revision, the Intermittent Survey of Businesses (FR 1374), and the Domestic Finance Company Report of Consolidated Assets and Liabilities (FR 2248).

On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.

DATES:

Comments must be submitted on or before December 2, 2016.

ADDRESSES:

You may submit comments, identified by FR 1374 or FR 2248, by any of the following methods:

All public comments are available from the Board's Web site at http://www.federalreserve.gov/apps/foia/proposedregs.aspx as submitted, unless modified for technical reasons. Accordingly, your comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper form in Room 3515, 1801 K Street (between 18th and 19th Streets NW.), Washington, DC 20006 between 9:00 a.m. and 5:00 p.m. on weekdays.

Additionally, commenters may send a copy of their comments to the OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW., Washington, DC 20503 or by fax to (202) 395-6974.

FOR FURTHER INFORMATION CONTACT:

A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Federal Reserve Board's public Web site at: http://www.federalreserve.gov/apps/reportforms/review.aspx or may be requested from the agency clearance officer, whose name appears below.

The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:

a. Whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;

b. The accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

c. Ways to enhance the quality, utility, and clarity of the information to be collected;

d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and

e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.

At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Federal Reserve should modify the proposed revisions prior to giving final approval.

Proposal To Approve Under OMB Delegated Authority the Extension for Three Years, Without Revision, of the Following Reports

1. Report title: Intermittent Survey of Business.

Agency form number: FR 1374.

OMB control number: 7100-0302.

Frequency: On occasion.

Respondents: Businesses and state and local governments.

Estimated number of respondents: 2,410.

Estimated average hours per response: 15 minutes.

Estimated annual burden hours: 1,825 hours.

General Description of Report: The survey data are used by the Federal Reserve to gather information specifically tailored to the Federal Reserve's policy and operational responsibilities. There are two parts to this event-generated survey. First, under the guidance of Federal Reserve economists, the Federal Reserve Banks survey business contacts as economic developments warrant. Currently, there are approximately 2,400 business respondents for each survey (about 200 per Reserve Bank); occasionally state and local government officials are called, in which case there are far fewer respondents. It is necessary to conduct these surveys to provide timely information to the members of the Board and to the presidents of the Reserve Banks. Usually, these surveys are conducted by Reserve Bank economists telephoning or emailing purchasing managers, economists, or other knowledgeable individuals at selected, relevant businesses. Reserve Bank staff may also use online survey tools to collect responses to the survey. The frequency and content of the questions, as well as the entities contacted, vary depending on developments in the economy. Second, economists at the Board survey business contacts by telephone, inquiring about current business conditions. Board economists conduct these surveys as economic conditions require, with approximately ten respondents for each survey.

Legal authorization and confidentiality: The Board's Legal Division has determined that the Board is authorized to collect this information under sections 2A and 12A of the Federal Reserve Act (12 U.S.C. 225a and 263) and that respondent participation in the survey is voluntary. Although the names of the participating entities might be disclosed in the summary memo and the memo might contain information provided to the Board for internal use only, exemption 4 of the Freedom of Information Act (5 U.S.C. 552(b)(4)) may exempt this information from disclosure to the public. However, if the information collected on the FR 1374 does not meet these standards for confidentiality (for example if the information collected is already public), it would not be granted confidential treatment.

General Description of Report: The FR 2248 is collected monthly as of the last calendar day of the month from a stratified sample of finance companies. Each monthly report collects balance sheet data on major categories of consumer and business credit receivables and on major short-term liabilities. For quarter-end months (March, June, September, and December), additional asset and liability items are collected to provide a full balance sheet. A supplemental section collects data on securitized assets. The data are used to construct universe estimates of finance company holdings, which are published in the monthly statistical releases Finance Companies (G.20) and Consumer Credit (G.19), in the quarterly statistical release Flow of Funds Accounts of the United States (Z.1), and in the Federal Reserve Bulletin (Tables 1.51, 1.52, and 1.55).

Legal authorization and confidentiality: The Board's Legal Division has determined that the FR 2248 is authorized by law pursuant to Section 2A of the Federal Reserve Act, 12 U.S.C. 225a). The obligation to respond is voluntary. Individual respondent data are confidential under section (b)(4) of the Freedom of Information Act (5 U.S.C. 552(b)(4)).

Board of Governors of the Federal Reserve System, September 28, 2016.Robert deV. Frierson,Secretary of the Board.[FR Doc. 2016-23781 Filed 9-30-16; 8:45 am] BILLING CODE 6210-01-PDEPARTMENT OF HEALTH AND HUMAN SERVICESCenters for Disease Control and Prevention[CDC-2015-0034, Docket Number NIOSH 233-A]NIOSH List of Antineoplastic and Other Hazardous Drugs in Healthcare Settings 2016AGENCY:

National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

ACTION:

Notice of issuance of final guidance publication.

SUMMARY:

The National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), announces the availability of the following publication: NIOSH List of Antineoplastic and Other Hazardous Drugs in Healthcare Settings 2016 [2016-161].

ADDRESSES:

This document may be obtained at the following link: http://www.cdc.gov/niosh/docs/2016-161/.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.

The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Name of Committee: National Cancer Institute Special Emphasis Panel; NCI Provocative Questions—PQ2.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.

The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Name of Committee: National Institute on Aging Special Emphasis Panel; Multi-Omics in Osteoporosis.

The National Institutes of Health (NIH) is correcting a notice previously published in the Federal Register on September 8, 2016 (81 FR 62150), titled “Announcement of Requirements and Registration for ‘Antimicrobial Resistance Rapid, Point-of-Need Diagnostic Test’ Challenge.” The notice announced the Antimicrobial Resistance Rapid, Point-of-Need challenge competition that may result in the awarding of $20 million dollars for the successful development of new, innovative, accurate, and cost-effective in vitro diagnostic tests that would rapidly inform clinical treatment decisions and be of significant clinical and public health utility to combat the development and spread of antibiotic resistant bacteria and improve antibiotic stewardship.

The NIH is correcting and clarifying several components of the Challenge competition including:

(1) The letter of intent must be submitted by December 23, 2016, for all “Solvers” planning to submit for the Step 1 (Theoretical) stage of the competition. The September 8, 2016 announcement incorrectly stated that the letter of intent prior to Step 1 was required but a specific due date was not stated.

(2) Any Appendix submitted for Step 1 of the Challenge competition must be limited to 5 pages or less in length. If a longer Appendix is submitted, only the first 5 pages will be considered by the Technical Evaluation Panel and the Judging Panel. The September 8, 2016, announcement incorrectly stated that there was no page length for the Appendix material.

(3) Submissions for Step 1 of the Challenge competition received after the deadline of January 9, 2017, at 11:59 p.m. ET will be disqualified and not evaluated by the Technical Evaluation Panel or Judging Panel.

(4) Solvers may submit corrections or additional materials in support of their Step 1 submissions so long as the NIH receives the materials by the deadline of January 9, 2017, at 11:59 p.m. ET. Corrections or additional materials for Step 1 will not be accepted or evaluated by the Technical Evaluation Panel or Judging Panel if they are received after January 9, 2017 at 11:59 p.m. ET.

(5) The NIH will perform an initial review of all submissions to ensure they are complete and within the scope of the Challenge competition. Submissions that are incomplete will be administratively disqualified and will not be evaluated by the Technical Evaluation Panel or the Judging Panel.

(6) The NIH and Assistant Secretary for Preparedness and Response/Biomedical Advanced Research and Development Authority may determine that based on the number of submissions received for Step 1 that less competitive submissions will not be discussed by the Technical Evaluation Panel during the Panel's meeting.

(7) The “Solver” needs to address the NIH Human Subjects Protections and Inclusion of Women, Children, and Minorities policies in their submissions for Step 1 of this competition.

(8) Members of the Technical Evaluation Panel are not eligible to participate in or